HomeMy WebLinkAboutAgr 1998-06-23 (Ned's Way Garden Homes)RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
Tiburon Redevelopment Agency
1505 Tiburon Boulevard
Tiburon, California 94920
Attention: Executive Director
No fee for recording pursuant to
Government Code Section 27383
1 4-=3 ~3 4B - go G60 -e+ 1-3 t5 t5
Recorded i REC FEE .00
Official Records
County Of
Marin
JOAN C. THAYER,
Recorder
1 1 i 45AI'J L.5-Jun-1998
To
Page 1 of 98
R D
AUG 5 1998
Liij
FINANCE DEPARTMENT
TOWN OF TIBURON
DISPOSITION AND DEVELOPMENT AGREEMENT
BY AND BETWEEN
TIBURON REDEVELOPMENT AGENCY
AND
NEWS WAY GARDEN HOMES LLC
102\04\109685.6
Paiz
ARTICLE 1 DEFINITIONS AND EXHIBITS
Section 1.1 DEFINITIONS 2
Section 1.2 "ACTUAL HOUSEHOLD SIZE E 2
Section 1.3 "ADJUSTED INCOME"
Section 1.4 "AFFORDABLE HOUSING COST.............................................. 2 Section 1.5 "AFFORDABLE UNIT"
Section 1.6 "AFFORDABLE UNIT VALUE" 2
Section 1.7 "AGENCY" 2
Section 1.8 "AGENCY SUBSIDY'
Section 1.9 "AGREEMENT" ' 2
3
Section 1.10 "AGENCY GRANT DEED"
Section 1.11 "CERTIFICATE OF COMPLETION" 3
Section 1.12 "CONSTRUCTION PLANS"
Section 1.13 "DESIGN REVIEW APPROVAL" 3
Section 1.14 "DEVELOPER" 3
Section 1.15 "DEVELOPMENT" 3
.
Section 1.16 "ESCROW ' 3
Section 1.17 "EVENT OF DEFAULT" 3
Section 1.18 "GOOD FAITH DEPOSIT" • 3
Section 1.19 "HAZARDOUS MATERIALS"
Section 1.20 "HAZARDOUS MATERIALS LAWS......................................................... 4 Section 1.21 "IMPROVEMENTS" 4
Section 1.22 LOW INCOME HOUSEHOLD" 4
Section 1.23 "MEDIAN INCOME" 5
Section 1.24 "PHASE I STUDY"
Section 1.25 "PRECISE DEVELOPMENT PLAN' 5
Section 1.26 "PROPERTY" 5
Section 1.27 "PROJECT AREA"
Section 1.28 "REDEVELOPMENT PLAN" 5
Section 1.29 "RESALE RESTRICTION AGREEMENT"
Section 1.30 "REVIEW PERIOD... 5
Section 1.31 "SECURITYFINAN 5
.31 "SECURITYFINAN CING INTEREST" 5
Section 1.32 "SENIOR HOUSEHOLD" 5
Section 1.33 "TERM" 5
Section 1.34 "TITLE COMPANY" 6
Section 1.35 "TOWN"
Section 1.36 "TOWN COUNCIL".........................................
Section 1.37 "TRANSFER . .
Section 1.38 "VERY LOW INCOME HOUSEHOLD" 6
Section 1.39 EXHIBITS 6
1 02\04kl 09685.6
TABLE OF o, ,rw
(continued)
Pain
ARTICLE 26 DEVELOPER COVENANTS AND REPRESENTATIONS
Section 2.1 Organization........... ...•"."""""""""""""6
Section 2.2 Town Discretion
Section 2.3 Good Faith Effort 7
Section 2.4 Applications for Precise Development Plan and Conditional.
Use Permit
Section 2.5 Application for Environmental 7
Review 7
Section 2.6 Application for Design Review Approval 7
Section 2.7 Application for Other Town Approvals....
ARTICLE 3 AGENCY CONDITIONS PRECEDENT TO DISPOSITION
Section 3.1 Conditions Precedent to Disposition of Property 7
Section 3.2 Precise Development Plan and Conditional Use Permit
Section 3.3 Environmental Review......... 8
Section 3.4 Design Review Approval
Section 3.5 Other Town A 8
Approvals 8
Section 3.6 Financial Proforma Analysis and Funding Commitment 8
Section 3.7 Senior Development Covenant
Section 3.8 Extension Due to Delay
ARTICLE 4 DEVELOPER CONDITIONS PRECEDENT TO PURCHASE
Section 4.1 Conditions Precedent to Purchase of Pro a '•.'.8
Section 4.2 Approval of Precise Development Plan anCondition 8
Conditional Use
Permit
9
Section 4.3 Environmental Review
Section 4.4 Design 9
Review 9
Section 4.5 Expiration of Review Period
Section 4.6 Other Town Approvals 9
9
Section 4.7 Extension Due to Delay
ARTICLE 5 DISPOSITION OF PROPERTY ................................................................................9
Section 5.1 Sale and Purchase 9
Section 5.2 Good Faith Deposit.
Section 5.3 Due Diligence Period
Section 5.4 Purchase Price 10
Section 5.5 Opening Escrow 10
Section 5.6 Close of Escrow.....
Section 5.7 Condition of Title 11
Section 5.8 Condition of Property 11
Section 5.9 Costs of Escrow and Closing
ARTICLE 6 CONSTRUCTION OF RAPROVEMENTS .............................................................12
Section 6.1 Commencement of Improvements 12
Section 6.2 Demolition of Existing Improvements 12
1021041109685.6 ii
TABLE OF CONTENTS
(continued)
Paiz
Section 6.3 Relocation of the Community Garden 12
Section 6.4 Completion of the Improvements
Section 6.5 Construction Plans 13
Section 6.6 Construction Pursuant to Plans 13
Section 6.7 Equal Opportunity.
Section 6.8 Prevailing Wage Requirement
Section 6.9 Maintenance 13
Section 6.10 Certificate of Completion 13
ARTICLE 7 SALE OF THE AFFORDABLE UNITS ..................................................................14
Section 7.1 Development of Affordable Units
Section 7.2 Value of Affordable Units 14
Section 7.3 Purchase Price of Affordable Units 14
Section 7.4 Agency Subsidy 14
Section 7.5 Resale Restriction Agreement
Section 7.6 Payment of Agency Subsidy 14
Section 7.7 Agency Option to Purchase 15
Section 7.8 Failure to Sell Affordable Units 15
ARTICLE 8 ON-GOING DEVELOPER OBLIGATIONS ..........................................................16
Section 8.1 Taxes and Assessments 16
Section 8.2 Mandatory Language in All Subsequent Deeds, Leases and
Contracts 16
Section 8.3 Hazardous Materials 17
Section 8.4 Insurance Requirements 19
ARTICLE 9 ASSIGNMENT AND TRANSFERS
Section 9.1 Definitions 20
Section 9.2 Purpose of Restrictions on Transfer 21 Section 9.3 Prohibited Transfers 21
Section 9.4 Permitted Transfers 22
Section 9.5 Effectuation of Certain Permitted Transfers 22
Section 9.6 Other Transfers with Agency Consent 22
ARTICLE 10 DEFAULT AND REMEDIES ................................................................................23
Section 10.1 General Applicability 23
Section 10.2 No Fault of Parties 23
Section 10.3 Fault of Agency 23
Section 10.4 Fault of Developer 24
Section 10.5 Right of Reverter 25
Section 10.6 Right to Cure at Developer's Expense 26
Section 10.7 Rights of Mortgagees 26
Section 10.8 Remedies Cumulative 26
Section 10.9 Waiver of Terms and Conditions 27
1021041109685.6 iii
TABLE 0 CONTENTS
(continued)
Pa2
ARTICLE 11 SECURITY FINANCING AND RIGHTS OF HOLDERS
Section 11.1 No Encumbrances Except for Development Purposes.' 27
Section 11.2 Holder Not Obligated to Construct 27
Section 11.3 Notice of Default and Right to Cure.
Section 11.4 Failure of Holder to Complete Improvements 28
Section 11.5 Right of Agency to Cure. 28
Section 11.6 Right of Agency to Satisfy Other Liens 28
Section 11.7 Holder to be Notified.
ARTICLE 12 GENERAL PROVISIONS .....................................................29
Section 12.1 Notices, Demands and Communications. 29
Section 12.2 Right of Entry Prior to Closing . 29
Section 12.3 Non-Liability of Agency Officials, Employees and Agents;
Non-Liability of Developer's Members 30
Section 12.4 Forced Delay
Section 12.5 Inspection of Books and Records 30
Section 12.6 Provision Not Merged with Deeds
Section 12.7 Title of Parts and Sections 30
Section 12.8 General Indemnification 31
Section 12.9 Applicable Law.
Section 12.10 No Brokers 31
Section 12.11 Severability 31
Section 12.12 Legal Actions...
Section 12.13 Binding 31
g Upon Successors . 31
Section 12.14 Parties Not Co-Venturers 32
Section 12.15 Warranties 32
Section 12.16 Time of the Essence 32
Section 12.17 Action by the Agency. ' "
Section 12.18 Identity 32
and Authority of Developer 32
Section 12.19 Complete Understanding of the Parties 32
Section 12.20 Entry by the Agency.
EXHIBI'T' A LEGAL DESCRIPTION OF THE PROPERTY
EXHIBIT B FORM OF AGENCY GRANT DEED
EXHIBIT C FORM OF RESALE RESTRICTION
EXHIBIT D PRELIMINARY TITLE REPORT
102\04\109M.6 iv
DISPOSITION AND DEVELOPMENT AGREEMENT
FOR
NED'S WAY SENIOR HOUSING DEVELOPMENT
This Disposition and Development Agreement for Ned's Way Senior Housing
Development (the "Agreement") is entered into as this 17th day of June, 1998 by and
between the Tiburon Redevelopment Agency, a public body, corporate and politic (the
"Agency"), and ~Ned's Way Garden Homes LLC, a California limited liability company
(the "Developer"), with reference to the following facts, understandings and intentions of
the parties:
RECITALS
A. These Recitals refer to and utilize certain capitalized terms which are defined
in Article 1 of this Agreement. The parties intend to refer to those definitions in
connection with the use of capitalized terms in these Recitals.
B. The Agency is charged with increasing, improving and preserving the
community's supply of low and moderate income housing. Pursuant to the Community
Redevelopment Law (California Health and Safety Code Section 33000 gl =Q.) (the
CRL the Agency is required to insure that a certain amount of housing affordable to
very low-income households is produced in the Tiburon community based on the housing
production in the Tiburon Redevelopment Project Area.
C. The Agency is the owner of that approximately 1.5 acre parcel of real property
located at 1155 Tiburon Way in the Town of Tiburon California (the "Property"). The
Property was acquired by the Agency with the intent of facilitating the development of
affordable units on the Property.
D. The Developer desires to purchase the Property from the Agency and develop
the Improvements, consisting of twenty-five (25) two and three bedroom townhomes of
which four (4) townhomes will be made available for sale at an affordable housing cost to
qualified households of elderly households.
E. The Developer intends to purchase the Property at its fair market value and
the Agency intends to assist the Developer in subsidizing four (4) units to make them
affordable to very low-income seniors pursuant to the terms of this Agreement.
F. The Agency intends to apply the units to be developed in the Development
toward satisfaction of its Project Area housing production obligation under Health and
Safety Code Section 33413(b) in the manner permitted by Health and Safety Code
Section 33413(b)(2)(A)(ii).
G. The Agency has prepared and placed on file a copy of the summary of the
transaction contemplated by this Agreement, the Town Council and the Agency have
1021041109685.6
conducted a'duly noticed public hearing on this Agreement, and the Town Council and
the Agency have made the required findings and approvals in connection with the
disposition of the Property pursuant to this Agreement, all in conformance with the
requirements of Health and Safety Code Section 33433.
H. The Agency has determined that the Developer has the necessary expertise,
skill and ability to carry out the commitments set forth in this Agreement and that this
Agreement is in the best interests, and will materially contribute to the implementation
of, the Redevelopment Plan.
THEREFORE, the Agency and the Developer agree as follows:
ARTICLE 1
DEFINITIONS AND EXHIBITS
Section 1.1 DEFINITIONS. In addition to the terms defined elsewhere in this
Agreement, the following definitions shall apply throughout this Agreement.
Section 1.2 "ACTUAL HOUSEHOLD SIZE" shall mean the actual number
of persons in the applicable household.
Section 1.3 "ADJUSTED INCOME" shall mean the total anticipated annual
income of all persons in a household, as calculated in accordance with 25 California
Code of Regulations Section 6914 or pursuant to a successor State housing program that
utilizes a reasonably similar method of calculation of adjusted income. In the event that
no such program exists, the Lender shall provide the Borrower with a reasonably similar
method of calculation of adjusted income as provided in said Section 6914.
Section 1.4 "AFFORDABLE HOUSING COST" means the maximum cost
which may be charged a Very Low-Income Household for housing as determined
pursuant to Section 50025.5 of the California Health and Safety Code and 25 California
Code of Regulations Section 6920.
Section 1.5 "AFFORDABLE UNIT" means one of the four (4) townhome
units in the Development reserved for sale to Very-Low Income Households.
Section 1.6 "AFFORDABLE UNIT VALUE" means the estimate value of
an Affordable Unit as determined by the Developer and the Agency in the amount of
Two Hundred Seventy Thousand Dollars ($270,000).
Section 1.7 "AGENCY" means the Tiburon Redevelopment Agency, a public
body, corporate and politic.
Section 1.8 "AGENCY SUBSIDY" means the subsidy paid to the Developer
pursuant to Section 7.4 in the amount of Two Hundred Thousand Dollars ($200,000) for
10Z04\109W5.6 2
each Affordable Unit sold to a Very Low Income Household and which in the aggregate
shall not exceed Eight Hundred Thousand Dollars ($800,000).
Section 1.9 "AGREEMENT" means this Disposition and Development
Agreement.
Section 1.10 "AGENCY GRANT DEED" means the grant deed of the
Property to the Developer, substantially in the form of Exhibit B.
Section 1.11 "CERTIFICATE OF COMPLETION" means the certificate to
be issued by the Agency pursuant to Section 6.10 of this Agreement.
Section 1.12 "CONSTRUCTION PLANS" means all construction
documentation upon which the Developer, and the Developer's several contractors, shall
rely in building each and every part of the Improvements (including landscaping, parking,
and common areas) and shall include, but not necessarily be limited to, final architectural
drawings, landscaping plans and specifications, final elevations, building plans and
specifications (also known as working drawings) and a time schedule for construction.
Section 1.13 "DESIGN REVIEW APPROVAL" means the design review
approval for the Development granted by the Town's Design Review Board in
accordance with applicable ordinances and regulations.
Section 1.14 "DEVELOPER" means Ned's Way Garden Homes LLC, a
California limited liability company and its successors and assigns as permitted by this
Agreement.
Section 1.15 "DEVELOPMENT" means the Property and the Improvements.
Section 1.16 "ESCROW" means the escrow established with the Title
Company for the purpose of conveying the Property from the Agency to the Developer
Section 1.17 "EVENT OF DEFAULT" has the meaning set forth in Section
9.3 or 9.4 as applicable.
Section 1.18 "GOOD FAITH DEPOSIT" shall mean the funds deposited with
the Agency by the Developer pursuant to and in the amount provided in Section 4.2.
Section 1.19 "HAZARDOUS MATERIALS" means:
(a) any "hazardous substance" as defined in Section 101(14) of CERCLA (42
U.S.C. Section 9601(14)) or Section 25281(d) or 25316 of the California
Health and Safety Code at such time;
10MA109685.6 3
(b) any "hazardous waste," "infectious waste" or "hazardous material" as
defined in Section 25117, 25117.5 or 255010) of the California Health
and Safety Code at such time;
(c) or material designated or regulated in any way as "toxic" or "hazardous"
in the RCRA (42 U.S.C. Section 6901 et seq.), CERCLA Federal Water
Pollution Control Act (33 U.S.C. Section 1521 et seq.), Safe Drinking
Water Act (42 U.S.C. Section 3000 (f) et seq.), Toxic Substances Control
Act (15 U.S.C. Section 2601 et seq.), Clear Air Act (42 U.S.C. Section
7401 et seq.), California Health and Safety Code (Section 25100 et seq.,
Section 3900 et seq.), or California Water Code (Section 1300 et seq.) at
such time; and
(d) any additional wastes, substances or material which at such time are
classified, considered or regulated as hazardous or toxic under any other
present or future environmental or other similar laws relating to the
Development.
The term "Hazardous Materials" shall not include: (i) construction materials,
gardening materials, household products, office supply products or janitorial supply
products customarily used in the construction, maintenance, rehabilitation, or
management of residential rental housing or associated buildings and grounds, or
typically used in household activities, or (ii) certain substances which may contain
chemicals listed by the State of California pursuant to California Health and Safety Code
Sections 25249.8 et seq., which substances are commonly used by a significant portion of
the population living within the region of the Development, including, but not limited to,
alcoholic beverages, aspirin, tobacco products, nutrasweet and saccharine.
Section 1.20 "HAZARDOUS MATERIALS LAWS" means all federal, state,
and local laws, ordinances, regulations, orders and directives pertaining to Hazardous
Materials in, on or under the Development or any portion thereof.
Section 1.21 "IMPROVEMENTS" means the improvements to be constructed
by the Developer on the Property, including twenty-five (25) residential units,
subterranean and surface parking, and appurtenant landscaping and improvements.
Section 1.22 LOW INCOME HOUSEHOLD" means a Senior Household
with an Adjusted Income that does not exceed eighty percent (80%) of Median Income,
adjusted for Actual Household Size and which does not have assets, including equity in
its principal residence, which exceeds three (3) times the purchase price to be aid by the
household for the Affordable Unit. For purposes of this definition, the household's
equity in its principal residence shall mean the value remaining after subtracting the
household's debt secured by the residence (the mortgage or mortgages) from the total
value of the residence, as such value is determined by an appraisal or other method
reasonably acceptable to the Agency.
102\04\109W5.6 4
Section 1.23 "MEDIAN INCOME" shall mean the median gross yearly
income adjusted for actual household size, for Marin County as determined by the United
States Department of Housing and Urban Development, and as published from time to
time by State of California Department of Housing and Community Development
( HCD In the event that such income determinations are no longer published, or are
not updated for a period of at least eighteen (18) months, the Lender shall provide the
Owner with other income determinations which are reasonably similar with respect to
methods of calculation to those previously published by HCD.
Section 1.24 "PHASE I STUDY" means the report entitled Phase I
Environmental Site Assessment Tiburon Town Hall Ned's Way Site, Tiburon, California
dated November 5, 1996.
Section 1.25 "PRECISE DEVELOPMENT PLAN" means the precise
development plan for the Development required to be approved by the Town Council in
accordance with applicable ordinances and regulations prior to the conveyance of the
Property.
Section 1.26 "PROPERTY" means the real property to be redeveloped by the
Developer, including any existing improvements located thereon, pursuant to this
Agreement, which real property is more particularly described in Exhibit A.
Section 1.27 "PROJECT AREA" means the Tiburon Redevelopment Project
Area.
Section 1.28 "REDEVELOPMENT PLAN" means the Redevelopment Plan
for the Tiburon Redevelopment Project, as hereafter amended from time to time.
Section 1.29 "RESALE RESTRICTION AGREEMENT" means the resale
restriction agreement to be executed by a Very Low Income Household upon the
purchase of an Affordable Unit, substantially in the form attached as Exhibit C to this
Agreement.
Section 1.30 "REVIEW PERIOD" means the ninety (90) day due diligence
period granted to the Developer pursuant to Section 5.3.
Section 1.31 "SECURITY FINANCING INTEREST" has the meaning set
forth in Section 10.1.
Section 1.32 "SENIOR HOUSEHOLD" means a household in which at least
one person is sixty-two (62) years or older and in which the all other members are forty-
five (45) years or older or a caregiver.
Section 1.33 "TERM" means the term of this Agreement, which shall consist
of the period commencing on the date of execution of this Agreement and continuing
IONW109sa5.6 5
until the earlier of (i) the sale of the last of the last unit in the Development by the
Developer or (ii) seven years following the date of this Agreement.
Section 1.34 "TITLE COMPANY" means the San Rafael office of California
Land Title Company, or such other title company as the parties may mutually select.
Section 1.35 "TOWN" means the Town of Tiburon, California.
Section 1.36 "TOWN COUNCIL" means the Town Council of the Town.
Section 1.37 "TRANSFER" has the meaning set forth in Section 9.1.
Section 1.38 "VERY LOW INCOME HOUSEHOLD" means a Senior
Household with an Adjusted Income that does not exceed the lesser of (1) fifty percent
(50%) of Median Income, adjusted for Actual Household Size, or (2) the qualifying limits
for very low income households, adjusted for Actual Household Size, as established and
amended from time to time pursuant to Section 8 of the United States Housing Act of
1937, and as published by the State of California Department of Housing and Community
Development and which does not have assets, including equity in its principal residence,
which exceeds three (3) times the purchase price to be paid by the household for the
Affordable Unit. For purposes of this definition, the household's ui
residence shall mean the value remaining after subtracting the househ to d in its principal
by the residence from the total value of the residence as such value is determined by an
appraisal or other method (the mortgage or mortgages) reasonably acceptable to the
Agency.
Section 1.39 EXHIBITS. The following exhibits are attached to and
incorporated in the Agreement:
Exhibit A: Legal Description of the Property
Exhibit B: Form of Agency Grant Deed
Exhibit C: Form of Resale Restriction
Exhibit D: Preliminary Title Report
ARTICLE 2
DEVELOPER COVENANTS AND REPRESENTATIONS
Section 2.1 Organization. The Developer is a limited liability company, duly
organized, validly existing and in good standing under the laws of the State of California,
with full power and authority to conduct its business as presently conducted and to
execute, deliver and perform its obligations this Agreement.
10MA109s$5.6 6
Section 2.2 Town Discretion. The Developer acknowledges and represents
that execution of this Agreement by the Agency does not constitute approval by the Town
of any required permits, applications, or allocations, and in no way limits the discretion
of the Town in the permit allocation and approval process.
Section 2.3 Good Faith Effort. The Developer shall apply for and exercise
diligent good faith efforts to obtain all the approvals set forth in Article 3.
Section 2.4 Applications for Precise Development Plan any onditional T se
Permit. Promptly following the execution of this Agreement, the Developer shall apply
for the Town's approval of a Precise Development Plan and a Conditional Use Permit.
Section 2.5 Application for nviro mental Review. The Developer shall
prepare and submit to the Town and the Agency such plans, specifications, drawings, and
other information, as specified by the Town that are reasonably necessary to perform the
environmental review process required by the California Environmental Quality Act
( CEQA) for the Development, and to prepare all environmental documentation required
by CEQA. The Town shall undertake the environmental review and environmental
documentation required by CEQA. If an Environmental Impact Report ("EIR") or a
mitigated negative declaration is determined by the Town to be required under CEQA,
the Developer shall reimburse the Town for staff time according to the Town's Cost
Recovery Program and shall pay the costs incurred for outside consultants (if any)
employed to prepare the EIR or mitigated negative declaration.
Section 2.6 Application for Design Review Appr val. Promptly following the
completion of the environmental review process set forth in Section 2.5, the Developer
shall apply for and exercise diligent good faith efforts to obtain the Design Review
Approval.
Section 2.7 Application for Other Town Approvals. Promptly following the
completion of the environmental review process set forth in Section 2.5, the Developer
shall apply for and exercise diligent good faith efforts to obtain all other Town approvals
necessary for development and operation of the Improvements, including but not limited
to approval of a tentative subdivision map and a final subdivision or parcel map.
ARTICLE 3
AGENCY CONDITIONS PRECEDENT TO DISPOSITION
Section 3.1 Conditions Precedent to Disposition of Pronaly. The
requirements set forth in this Article 3 are conditions precedent to the Agency's
obligations to convey the Property to the Developer. The Agency's obligation to convey
the Property to the Developer shall be subject to the satisfaction of all such conditions
precedent prior to June 30, 2000, unless a later date is mutually agreed upon by the
Agency Executive Director and the Developer or such date is extended pursuant to
Section 3.8 or Section 4.7.
1021041109685.6 7
Section 3.2 Precise Development Plan an Conditional Use Permit. The Town
has granted approval of the Precise Development Plan and the Conditional Use Permit.
Section 3.3 Environmental Review. The Town has completed the
environmental review process.
Section 3.4 Design Review An, oval. The Town's Design Review Board has
granted design review approval for the Development.
Section 3.5 Other Town Annroyals.The Developer has procured any other
required Town approvals (except for the building permit, which may be procured
following conveyance of the Property).
Section 3.6 Financial Proforma Analysis and Funding Commitment. The
Developer shall provide the Agency for the Agency's review and approval, which
approval shall not be unreasonably withheld, a detailed updated financial proforma for
the Development containing a line item budget for development costs and an executed
commitment for construction financing. The construction commitment shall be from a
lending institution reasonably acceptable to the Agency and in an amount that when
added to any committed equity for the Development will be sufficient to complete the
construction of the Development in accordance with the proforma. The financial
proforma and the commitment for construction financing shall be submitted not later that
forty five (45) days prior to the close of Escrow for the conveyance of the Property.
Section 3.7 Senior Development Coyenan . The Developer shall provide the
Agency for the Agency's review and approval, which approval shall not be unreasonably
withheld, a form of covenant which will restrict the sale of the units in the Development
to Senior Households. The Senior Household covenant shall be recorded against the
Property upon the conveyance of the Property from the Agency to the Developer.
Section 3.8 Extension D to Delav. In the event the Developer has submitted
all the required documents to the Agency and the Town to obtain the permits and
approvals required in this Article 3. and the permits and approvals are delayed through no
fault of the Developer, the date of performance specified in Section 3.1 and Section 4.1
shall be automatically extended for the period of the delay. Notwithstanding the
foregoing, in no event shall the date for performance specified in Section 3.1 be extended
beyond the last day of the Term of this Agreement.
ARTICLE 4
DEVELOPER CONDITIONS PRECEDENT TO PURCHASE
Section 4.1 Conditions Precedent to Purchase- of Pronerty. The requirements
set forth in this Article 4 are conditions precedent to the Developer's obligations to
purchase the Property from the Agency. The Developer's obligation to purchase the
102ko4\109M.6 8
Property from the Agency shall be subject to the satisfaction of all such conditions
precedent prior to June 30, 2000, unless a later date is mutually agreed upon by the
Agency Executive Director and the Developer or such date is extended pursuant to
Section 3.8 or Section 4.7.
Section 4.2 Approval of Precise Development Plan and Conditional Us Permi P
. The Town shall have granted Precise Development Plan approval and a
Conditional Use Permit approval for the Development in the unit configuration described
in this Agreement.
Section 4.3 Environmental Review. The Town shall have completed the
environmental review process required by the California Environmental Quality Act
( CEQA
Section 4.4 Design Review. The Town has granted Design Review approval
for the Development in the unit configuration described in this Agreement.
Section 4.5 Expiration of R view Period. The Developer has failed to provide
a written objection to the Agency regarding the adequacy of the Property pursuant to
Section 5.3 and the Review Period has expired.
Section 4.6 Other Town Annrovals. The Town has granted all other Town
approvals necessary for development and operation of the Improvements (except the
building permit), including any required subdivision approvals.
Section 4.7 Extension Due to Delav. In the event the Developer has submitted
all the required documents to the Agency and the Town to obtain the permits and
approvals required in Article 3. and the permits and approvals are delayed through no
fault of the Town's, the date of performance specified in Section 3.1 and Section 4.1 shall
be automatically extended for the period of the delay. Notwithstanding the foregoing, in
no event shall the date for performance specified in Section 4.1 be extended beyond the
last day of the Term of this Agreement.
ARTICLE 5
DISPOSITION OF PROPERTY
Section 5.1 Sale and Purchase. Provided the pre-disposition requirements set
forth in Article 3 and Article 4 and the additional closing conditions set forth in Section
5.6 have been satisfied, the Agency shall sell to the Developer, and the Developer shall
purchase from the Agency, the Property pursuant to the terms, covenants, and conditions
of this Agreement.
Section 5.2 Good Faith Deposit. Within five (5) business days following the
execution of this Agreement, the Developer shall deposit Twenty Five Thousand Dollars
($25,000) Dollars into the Escrow established pursuant to Section 5.5. as the Good Faith
102\04\109685.6 9
Deposit. The Good Faith Deposit shall be credited to the purchase price of the Property
upon the Developer's acquisition of the Property from the Agency. In the event that
Escrow fails to close for the purchase of the Property by the Developer, the deposit shall
be disbursed by the Title Company pursuant to the provisions of Article 10 hereto.
Section 5.3 Due Diligence per~~- The Developer shall have a period of ninety
(90) days following the date of execution of this Agreement (the "Review Period") within
which to determine the suitability of the Property. During the Review Period, the
Developer shall have the right, at its sole cost and subject to the further terms of Section
11.2, to enter onto the Property to conduct whatever environmental, soils, groundwater,
and other tests and investigations it desires. The Developer shall promptly furnish the
results of such tests and investigations to the Agency.
If, in the Developer's reasonable judgement based on such tests and
investigations, the Property is in such a condition as to require the Developer to reject the
Property, it may so notify the Agency in writing prior to the expiration of the Review
Period. Upon such timely notification, this Agreement shall be terminated without
further action of either party, the Good Faith Deposit shall be returned, and thereafter
neither party shall have any further duties, obligations, rights, or liabilities under this
Agreement (provided, however, the indemnification provisions of 8.3(b), 12.2 and 12.8
shall survive such termination). If the Developer notifies the Agency in writing prior to
expiration of the Review Period that the Property is suitable or if the Developer fails to
provide any notification to the Agency regarding this matter prior to expiration of the
Review Period, the condition set forth in this Section 5.3 shall be deemed satisfied and
this Agreement shall continue in effect.
Section 5.4 Purchase Price. The purchase price for the Property shall be One
Million Four Hundred Thousand Dollars ($1,400,000) to be paid to the Agency by the
Developer at the close of Escrow.
Section 5.5 Opening -Escrow. To accomplish the purchase and transfer of the
Property from the Agency to the Developer, the parties shall establish the Escrow with
the Title Company promptly following the execution of this Agreement. The parties shall
execute and deliver all written instructions to the Title Company to accomplish the terms
hereof, which instructions shall be consistent with this Agreement.
Section 5.6 Close of Escrow. Escrow for the conveyance of the Property shall
close on a date mutually acceptable to the parties within thirty (30) days following the
date on which all conditions precedent to conveyance set forth in Article 3 and Article 4
have been satisfied. In addition to the conditions precedent to conveyance set forth in
Article 3 and Article 4, the following conditions shall be satisfied prior to or concurrently
with, and as conditions of, conveyance of the Property:
102\04%iOM5.6 10
(a) The Developer shall have furnished the Agency with evidence of
the insurance coverage meeting the general insurance requirements set forth in Section
8.4.
(b) There shall exist no condition, event or act which would constitute
a breach or default under this Agreement or which, upon the giving of notice or the
passage of time, or both, would constitute such a breach or default
(c) All representations and warranties of the Developer contained in
this Agreement shall be true and correct as of the close of Escrow.
Section 5.7 Condition of Title. Upon the close of Escrow, the Property shall
have insurable title which shall be free and clear of all liens, encumbrances, clouds and
conditions, rights of occupancy or possession, except:
(a) applicable building and zoning laws and regulations;
(b) the provisions of the Agency Grant Deed;
(c) the provisions of this Agreement;
(d) the Senior Covenant
(e) any lien for current taxes and assessments or taxes and assessments
accruing subsequent to recordation of the Agency Grant Deed;
(fl conditions, covenants, restrictions or easements shown as
exception numbers 5 - 10 in Part II of Schedule B of the CLTA owner's policy of title
insurance for the Property issued by California Land Title Company to the Agency on
June 3, 1998, and attached to this Agreement as Exhibit ,D. and;
(g) all other matters approved in writing by the Developer.
Section 5.8 Condition of Property. In fulfillment of the purposes of Health
and Safety Code Section 25359.7(a), the Agency hereby represents and warrants that it
has no knowledge, and has no reasonable cause to believe, that any release of hazardous
substances has come to be located on or beneath the Property, except as disclosed in the
Phase I Study, a copy of which has been delivered to Developer.
Notwithstanding the foregoing, the Agency and the Developer understand and
agree that the Property shall be purchased "as is by the Developer and the Agency shall
in no way be responsible for demolition, site preparation or any other removal or
replacement of improvements thereon. The Developer agrees to accept conveyance of
the Property in its present condition, "as is" and without representation or warranty from
the Agency with respect to the condition of the Property including, but not limited to, the
condition of the soil, presence of hazardous materials or contaminants, and all other
physical characteristics. The Developer has performed and relies solely upon its own
10MC109685.6 11
independent investigation concerning the physical condition of the Property or
compliance of the Property with any statutes, ordinances, rules or regulations.
If the conditions of the Property are not in all respects entirely suitable for the use
or uses to which the Property will be put as described in this Agreement, then it is the
sole responsibility and obligation of the Developer to correct any soil conditions, correct
any subsurface condition, correct any structural condition, demolish any improvements
and otherwise put the Property in a condition suitable for the Improvements to be
constructed pursuant to this Agreement. The Developer hereby waives any right to seek
reimbursement or indemnification from the Agency of the Developer's costs related to
correction of any physical conditions on the Property, including but not limited to the
presence of hazardous materials.
Section 5.9 Costs of Escrow and losing. Ad valorem taxes, if any, shall be
prorated as of the date of conveyance. The Developer shall pay the cost of title insurance
and transfer tax. The Developer shall pay the cost of Title Company document
preparation and recordation fees and the escrow fees of the Title Company. The costs
borne by the Developer are in addition to the purchase price for the Property.
ARTICLE 6
CONSTRUCTION OF IMPROVEMENTS
Section 6.1 Commencement of Improvements. The Developer shall
commence construction of the Improvements within six (6) months following
conveyance of the Property to the Developer.
Section 6.2 Demolition of xistingImnrovements. The Developer shall be
solely responsible for the demolition of any and all existing improvements located on the
Property as of the close of Escrow.
Section 6.3 Relocation of the Community . The property is at present
the site of community garden maintained by and for Tiburon residents. The Developer
shall relocate the current community garden onto the adjacent property pursuant to a
community garden relocation plan reasonably approved by the Agency or, at the election
of the Agency. In lieu of relocating the community garden, the Developer shall
contribute Ten Thousand Dollars ($10,000) to the Town to subsidize other community
gardens or other park uses. The Ten Thousand Dollar ($10,000) contribution amount is
not intended to and shall not be interpreted to in any way limit the expenditures required
by the Developer to relocate the community garden.
Section 6.4 Completion of the Improvement. The Developer shall diligently
prosecute to completion the construction of the Improvements within eighteen (18)
months following commencement of construction.
102W 10%85.6 12
Section 6.5 Construction Plans. The Developer shall prepare the construction
plans for the Improvements in conformance with this Agreement, the Precise
Development Plan approval, the Conditional Use Permit, the Design Review approval,
and such other approvals issued by the Town.
Section 6.6 Construction Pursuant to Plans. The Improvements shall be
constructed substantially in accordance with the Construction Plans and the terms and
conditions of the Town's land use permits and approvals and building permits, including
any variances granted.
Section 6.7 Equal Opnor~, During the construction of the Improvements
there shall be no discrimination on the basis of race, color, creed, religion, sex, sexual
orientation, marital status, national origin or ancestry in the hiring, firing, promoting or
demoting of any person engaged in the construction work.
Section 6.8 Preyailin Wage gguirement To the extent required by Sections
1770 et seq. of the California Labor Code and regulations issued pursuant thereto, the
Developer shall pay, or cause to be paid, prevailing rates of wages for construction work
done in connection with the Improvements.
Section 6.9 Maintenance. The Developer hereby agrees that, prior to
completion of the Improvements, the portions of the Property undergoing construction
shall be maintained in a neat and orderly condition to the extent practicable and in
accordance with industry health and safety standards. During the Term of this
Agreement, the Developer shall maintain the Development in good repair and working
order, and in a neat, clean and orderly condition, including the walkways, driveways,
alleyways and landscaping, and from time to time make all necessary and proper repairs,
renewals, and replacements.
Section 6.10 Certificate of om inn. Promptly after completion of the
Improvements in accordance with those provisions of this Agreement relating solely to
the obligations of Developer to construct the Improvements (including the dates for
beginning and completion thereof), the Agency will provide a Certificate of Completion
so certifying. For the purposes of this Section 6.10, completion of the Improvements
shall occur upon issuance of a certificate of occupancy by the Town for the
Improvements. Such certification shall be conclusive determination that the covenants in
this Agreement with respect to the obligations of the Developer to construct the
Improvements and the dates for the beginning and completion thereof have been met.
Such certification shall be in such form as will enable it to be recorded among the official
records of Marin County. Such certification and determination shall not constitute
evidence of compliance with or satisfaction of any obligation of the Developer to any
holder of deed of trust securing money loaned to finance the Improvements or any part
thereof and shall not be deemed a notice of completion under the California Civil Code.
1OZ04%109685.6 13
ARTICLE 7
SALE OF THE AFFORDABLE UNITS
Section 7.1 Development of Affordable Units. As a condition of the sale of
the Property to the Developer, the Developer shall offer four units in the Development for
sale to Very Low Income Households at an Affordable Housing Cost. To assist the
Developer in making the units affordable, the Agency shall pay to the Developer a
subsidy, as specified below, for each Affordable Unit sold to a Very Low Income
Household. The Agency Subsidy will allow the Developer to reduce the purchase price
of each Affordable Unit so that it may be purchased by a Very Low Income Household at
an Affordable Housing Cost.
Section 7.2 Value of Affordable Units. The Developer and the Agency have
reviewed the cost estimates for the development of the Affordable Units. Based on the
cost analysis, the Developer and the Agency have agreed that upon completion of
construction of the Affordable Units, the fair market value of the each Affordable Unit
will be Two Hundred Seventy Thousand Dollars ($270,000) (the "Affordable Unit
Value").
Section 7.3 Purchase Price of Affordable Units. Promptly following the
completion of construction of each of the Affordable Units as evidenced by the issuance
of a certificate of occupancy for such Unit, each Affordable Unit shall be offered for sale
to a Very Low Income Household at a purchase price which will allow the Very Low
Income Household to pay no greater than an Affordable Housing Cost for the Affordable
Unit.
Section 7.4 Agency Subsidy. Pursuant to the provisions of Section 6.6, the
Agency shall pay to the Developer the Agency Subsidy in the amount of Two Hundred
Thousand Dollars ($200,000) upon the sale of an Affordable Unit to a Very Low Income
Household. In no event shall the aggregate Agency Subsidy amount exceed Eight
Hundred Thousand Dollars ($800,000).
Section 7.5 Resale Restriction Aer m n . As a condition of receiving the
Agency Subsidy, the Developer shall require that the Very Low Income Household
execute a Resale Restriction Agreement in favor of the Agency or its designee in
substantially the form attached as Exhibit C. The Resale Restriction Agreement shall
restrict the ability of the Very Low Income Household to resell the Affordable Unit for a
period of fifty-five (55) years. The Resale Restriction Agreement shall be recorded
against each Affordable Unit as a covenant running with the land.
Section 7.6 Payment of Agency Subsidy. As a condition to receiving the
Agency Subsidy for an Affordable Unit, the Developer shall submit to the Agency (i) a
closing statement from the title company handling the escrow for the sale of the
Affordable Unit showing, at a minimum, the purchase price of the Affordable Unit, the
first mortgage amount and the amount of the Very Low Income Household's
1021041109685.6 14
downpayment; (ii) household income information for the Very Low Income Household
sufficient for the Agency to verify the eligibility of the Very Low Income Household for
the assistance, estimated first mortgage payments and other monthly charges required to
be paid by the purchaser; (iii) a copy of the recorded Resale Restriction Agreement and
(iv) such other information as reasonably required by the Agency.
Section 7.7 Asiency- tion to Purchase. As an alternative to selling the
Affordable Unit to a Very Low Income Household, the Developer grants to the Agency
an option to purchase one or more Affordable Units pursuant to the provisions of this
Section 7.7. Not more than one hundred twenty (120) days and not less than seventy five
(75) days prior to the anticipated date of completion of construction of each Affordable
Unit, the Developer shall notify the Agency in writing of the expected completion date.
The Agency shall have sixty (60) days from the receipt of the Developer's notice to notify
the Developer that the Agency intends to purchase the Affordable Unit for the Affordable
Unit Value. In the event the Agency exercises its option to purchase an Affordable Unit,
the purchase price for the Affordable Unit shall be paid to the Developer by the Agency
through an escrow within sixty (60) days following the issuance of the certificate of
occupancy for the Affordable Unit. In the event of an Agency purchase of an Affordable
Unit, the other provisions of this Article 7., including the provisions regarding a payment
of any Agency Subsidy, shall not apply to the sale of the Affordable Unit to the Agency.
Section 7.8 Failure to Sell Affordable Units.
(a) In the event that after a good faith effort to market and sell the
Affordable Units for the three (3) month period following completion of all of the
Affordable Units, the Developer is unable to sell one or more of the Affordable Units to
Very Low Income Households, the Developer may tender a written offer to the Agency
for the purchase by the Agency of one or more of the Affordable Units at the Affordable
Unit Value. The Agency shall have a period of sixty (60) days following the receipt of
the Developer's written offer to notify the Developer in writing of the Agency's
acceptance of the Developer's offer. Should the Agency fail to provide a written
acceptance of the Developer's offer within the sixty (60) period following receipt of the
Developer's written offer, the provisions of Section 7.8(b) shall apply.
(b) In the event the one or more Affordable Units are not sold pursuant to
Section 7.8(a), the Developer may offer any unsold Affordable Units for sale to Low
Income Households at an affordable housing cost as determined pursuant to Section
50025.5(b)(2) of the California Health and Safety Code and 25 California Code of
Regulations Section 6920. Unless otherwise approved by the Agency, the Developer
shall require no less than a five percent (5%) downpayment from the Low Income
Household and shall require that the debt service on the first mortgage be no less than
twenty percent (20%) of the Low Income Household's annual income. The Agency
Subsidy, for purposes of a sale of an Affordable Unit to a Low Income Household, shall
be an amount equal to the difference between the Affordable Unit Value and the purchase
price paid to the Developer by the Low Income Household. Notwithstanding the
foregoing, in no event shall the Agency Subsidy for any one Affordable Unit sold
1021041109685.6 15
pursuant to this Section 7.8(b) exceed Two Hundred Thousand Dollars ($200,000) nor
shall the aggregate Agency Subsidy amount exceed Eight Hundred Thousand Dollars
($800,000).
ARTICLE 8
ON-GOING DEVELOPER OBLIGATIONS
Section 8.1 Taxes and Assessments. The Developer shall pay all real and
personal property taxes, assessments and charges and all franchise, income, employment,
old age benefit, withholding, sales, and other taxes assessed against it, or payable by it, at
such times and in such manner as to prevent any penalty from accruing, or any lien or
charge from attaching to the Property; provided, however, that the Developer shall have
the right to contest in good faith, any such taxes, assessments, or charges. In the event
the Developer exercises its right to contest any tax, assessment, or charge against it, the
Developer, on final determination of the proceeding or contest, shall immediately pay or
discharge any decision or judgment rendered against it, together with all costs, charges
and interest.
Section 8.2 Mandatory Lan Ua_e in All Subsequent Deeds. Leases and
Contracts.
(a) Basic Requirement. The Developer covenants by and for itself, its
successors and assigns that there shall be no discrimination against or segregation of a
person or of a group of persons on account of race, color, creed, religion, sex, sexual
orientation, marital status, national origin, ancestry or disability in the sale, lease,
sublease transfer, use, occupancy, tenure or enjoyment of the Development nor shall the
Developer or any person claiming under or through the Developer establish or permit any
such practice or practices of discrimination or segregation with reference to the selection,
location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees
in the Development. The foregoing covenant shall run with the land.
(b) Provisions In Conveyance Documen s. All deeds, leases or
contracts made or entered into by Developer, its successors or assigns, as to any portion
of the Property shall contain therein the following language:
(1) In Deeds:
"Grantee herein covenants by and for itself, its successors and assigns that there shall be
no discrimination against or segregation of a person or of a group of persons on account
of race, color, creed, religion, sex, sexual orientation, marital status, national origin,
ancestry or disability in the sale, lease, sublease, transfer, use, occupancy, tenure or
enjoyment of the property herein conveyed nor shall the grantee or any person claiming
under or through the grantee establish or permit any such practice or practices of
discrimination or segregation with reference to the selection, location, number, use or
occupancy of tenants, lessees, subtenants, sublessees or vendees in the property herein
102\04„09sa5.6 16
conveyed. The foregoing covenant shall run with the land".
(2) In Leases:
"The lessee herein covenants by and for the lessee and lessee's heirs, personal
representatives and assigns and all persons claiming under the lessee or through the
lessee that this lease is made subject to the condition that there shall be no discrimination
against or segregation of any person or of a group of persons on account of race, color,
creed, religion, sex, sexual orientation, marital status, national origin, ancestry or
disability in the leasing, subleasing, transferring, use, occupancy, tenure or enjoyment of
the land herein leased nor shall the lessee or any person claiming under or through the
lessee establish or permit any such practice or practices of discrimination or segregation
with reference to the selection, location, number, use or occupancy of tenants, lessees,
sublessees, subtenants, or vendees in the land herein leased".
(3) In Contracts:
"There shall be no discrimination against or segregation of any person or group of
persons on account of race, color, creed, religion, sex, sexual orientation, marital status,
national origin or ancestry or disability in the sale, lease, sublease, transfer, use,
occupancy, tenure or enjoyment of the property nor shall the transferee or any person
claiming under or through the transferee establish or permit any such practice or practices
of discrimination or segregation with reference to the selection, location, number, use or
occupancy of tenants, lessees, subtenants, sublessees or vendees of the land".
Section 8.3 Hazardous Materials.
(a) Certain Covenants and A, Pamants. The Developer hereby
covenants and agrees that:
(1) The Developer shall not knowingly permit the
Development or any portion thereof to be a site for the use, generation, treatment,
manufacture, storage, disposal or transportation of Hazardous Materials or otherwise
knowingly permit the presence of Hazardous Materials in, on or under the Development;
(2) The Developer shall keep and maintain the Development
and each portion thereof in compliance with, and shall not cause or permit the
Development or any portion thereof to be in violation of, any Hazardous Materials Laws;
(3) Upon receiving actual knowledge of the same the
Developer shall immediately advise the Agency in writing of (A) any and all
enforcement, cleanup, removal or other governmental or regulatory actions instituted,
completed or threatened against the Developer or the Development pursuant to any
applicable Hazardous Materials Laws; (B) any and all claims made or threatened by any
third party against the Developer or the Development relating to damage, contribution,
cost recovery, compensation, loss or injury resulting from any Hazardous Materials (the
1021041109685.6 17
matters set forth in the foregoing clause (A) and this clause (B) are hereinafter referred to
as "Hazardous Materials Claims"); (C) the presence of any Hazardous Materials in, on or
under the Development; or (D) the Developer's discovery of any occurrence or condition
on any real property adjoining or in the vicinity of the Development classified as
"borderzone property" under the provisions of California Health and Safety Code,
Sections 25220 et seq., or any regulation adopted in accordance therewith, or to be
otherwise subject to any restrictions on the ownership, occupancy, transferability or use
of the Development under any Hazardous Materials Laws. The Agency shall have the
right to join and participate in, as a party if it so elects, any legal proceedings or actions
initiated in connection with any Hazardous Materials Claims and to have its reasonable
attorney's fees in connection therewith paid by the Developer.
(4) Without the Agency's prior written consent, which shall not
be unreasonably withheld, the Developer shall not take any remedial action in response to
the presence of any Hazardous Materials on, under, or about the Development (other than
in emergency situations or as required by governmental agencies having jurisdiction), nor
enter into any settlement agreement, consent decree, or other compromise in respect to
any Hazardous Materials Claims.
N Indemni . Without limiting the generality of the indemnification
set forth in Section 12.8 below, the Developer hereby agrees to indemnify, protect, hold
harmless and defend (by counsel reasonably satisfactory to the Agency) the Agency, its
boardmembers, officers, and employees from and against any and all claims, losses,
damages, liabilities, fines, penalties, charges, administrative and judicial proceedings and
orders, ,judgements, remedial action requirements, enforcement actions of any kind, and
all costs and expenses incurred in connection therewith (including, but not limited to,
attorney's fees and expenses), arising directly or indirectly, in whole or in part, out of. (1)
the failure of the Developer or any other person or entity to comply with any Hazardous
Materials Law relating in any way whatsoever to the handling, treatment, presence,
removal, storage, decontamination, cleanup, transportation or disposal of Hazardous
Materials into, on, under or from the Development; (2) the presence in, on or under the
Development of any Hazardous Materials or any releases or discharges of any Hazardous
Materials into, on, under or from the Development; or (3) any activity carried on or
undertaken on or off the Development, subsequent to the conveyance of the Property to
the Developer, and whether by the Developer or any successor in title or any employees,
agents, contractors or subcontractors of the Developer or any successor in title, or any
third persons at any time occupying or present on the Development, in connection with
the handling, treatment, removal, storage, decontamination, cleanup, transport or disposal
of any Hazardous Materials at any time located or present on or under the Development.
The foregoing indemnity shall further apply to any residual contamination on or under
the Development, or affecting any natural resources, and to any contamination of any
property or natural resources arising in connection with the generation, use, handling,
treatment, storage, transport or disposal of any such Hazardous Materials, and
irrespective of whether any of such activities were or will be undertaken in accordance
with Hazardous Materials Laws. The provisions of this subsection shall survive
expiration of the Term or other termination of this Agreement, and shall remain in full
102\04\109N5.6 18
force and effect unless both of the following conditions apply: (x) the Agency fails to
convey the Property to the Developer and (y) the Developer never utilizes its right to
enter the Property pursuant to Section 12.2.
(c) No Limitation. The Developer hereby acknowledges and agrees
that the Developer's duties, obligations and liabilities under this Agreement, including,
without limitation, under subsection (b) above, are in no way limited or otherwise
affected by any information the Agency may have concerning the Development and/or
the presence within the Development of any Hazardous Materials, whether the Agency
obtained such information from the Developer or from its own investigations.
Section 8.4 Insurance Reuirements.
(a) Required Cover=. During the term of this Agreement, the
Developer shall maintain and keep in force, at the Developer's sole cost and expense, the
following insurance applicable to the Development:
(1) Worker's Compensation insurance, including Employer's
Liability coverage, with limits not less than $1,000,000 each accident.
(2) Comprehensive General Liability insurance provided on
ISO-CGL Form No. CG 00 01 11 85 or 88 with limits not less than $2,000,000 each
occurrence combined single limit for Bodily Injury and Property Damage, including
coverages for Contractual Liability, Personal Injury, Broadform Property Damage,
Products and Completed Operations.
(3) Comprehensive Automobile Liability insurance provided
on ISO Business Auto Coverage Form No. CA 00 01 86 92 including symbol 1 (any
auto) with limits not less than $1,000,000 each occurrence combined single limit for
Bodily Injury and Property Damage, including coverages for owned, non-owned and
hired vehicles, as applicable; provided, however, that if the Developer does not own or
lease vehicles for purposes of this Agreement, then no automobile insurance shall be
required and both parties to this Agreement shall initial this provision signifying same.
(4) Property insurance covering the Development covering all
risks of loss, including earthquake (but only if required in connection with the Permanent
Loan or if it is commercially affordable at a reasonable price and with a reasonable
deductible) and flood, for 100% of the replacement value, with deductible, if any,
acceptable to the Agency, naming the Agency as a Loss Payee, as its interest may appear.
(b) Contractor's Insurannce. The Developer shall cause any general
contractor or agent working on the Development under direct contract with the Developer
to maintain insurance of the types and in at least the minimum amounts described in
subsections (a)(1), (a)(2), and (a)(3) above, and shall require that such insurance shall
meet all of the general requirements of subsection (c) below. Subcontractors working on
the Development under indirect contract with the Developer shall be required to maintain
102M%109685.6 19
the insurance described in subsections (a)(1), (a)(2) and (a)(3) above. Liability and
Comprehensive Automobile Liability insurance to be maintained by such contractors and
agents pursuant to this subsection shall name as additional insureds the Agency, its
boardmembers, officers, agents, and employees.
(c) General R auirements. The required insurance shall be provided
under an occurrence form, and the Developer shall maintain such coverage continuously
throughout the Term. Should any of the required insurance be provided under a form of
coverage that includes an annual aggregate limit or provides that claims investigation or
legal defense costs be included in such annual aggregate limit, such annual aggregate
limit shall be three times the occurrence limits specified above. There shall be no cross
liability exclusion.
Comprehensive General Liability, Comprehensive Automobile Liability and
Property insurance policies shall be endorsed to name as additional insureds the Agency
and the Town and its boardmembers, officers, agents, and employees using ISO
Additional Insured Endorsement Form CG 20 10 11 85 (in no event will the Agency
accept an endorsement from with an edition date later than 1990).
All policies and bonds shall be endorsed to provide thirty (30) days prior written
notice of cancellation, reduction in coverage, or intent not to renew to the address
established for notices to the Agency pursuant to Section 12.1 below.
(d) Certificates of Insurance. Upon the Agency's request at any time
during the term of this Agreement, the Developer shall provide certificates of insurance,
in form and with insurers reasonable acceptable to the Agency, evidencing compliance
with the requirements of this Section, and shall provide complete copies of such
insurance policies, including a separate endorsement naming the Agency as additional
insured.
ARTICLE 9
ASSIGNMENT AND TRANSFERS
Section 9.1 Definitions. As used in this Article 9, the term "Transfer" means:
(a) Any total or partial sale, assignment or conveyance, or any trust or
power, or any transfer in any other mode or form, of or with respect to this Agreement or
of the Development or any part thereof or any interest therein or any contract or
agreement to do any of the same; or
(b) Any total or partial sale, assignment or conveyance, or any trust or
power, or any transfer in any other mode or form, of or with respect to any ownership
interest in Developer or any contract or agreement to do any of the same; or
1021041109685.6 20
(c) Any merger, consolidation, sale or lease of all or substantially all
of the assets of Developer.
Section 9.2 Purpose of Restriction on Transfer. This Agreement is entered
into solely for the purpose of development and operation of the Development and its
subsequent use in accordance with the terms hereof. The Developer recognizes that the
qualifications and identity of Developer are of particular concern to the Agency, in view
of:
(a) The importance of the redevelopment of the Property to the general
welfare of the community; and
(b) 'The land acquisition assistance and other public aids that have
been made available by law and by the government for the purpose of making such
redevelopment possible; and
(c) The reliance by the Agency upon the unique qualifications and
ability of the Developer to serve as the catalyst for development of the Property and upon
the continuing interest which the Developer will have in the Property to assure the quality
of the use, operation and maintenance deemed critical by the Agency in the development
of the Property; and
(d) The fact that a change in ownership or control of the owner of the
Property, or of a substantial part thereof, or any other act or transaction involving or
resulting in a significant change in ownership or with respect to the identity of the parties
in control of the Developer or the degree thereof is for practical purposes a transfer or
disposition of the Property; and
(e) The importance to the Agency and the community of the standards
of use, operation and maintenance of the Property.
The Developer further recognizes that it is because of such qualifications and identity that
the Agency is entering into this Agreement with the Developer and that Transfers are
permitted only as provided in this Agreement.
Section 9.3 Prohibited Transfers. The limitations on Transfers set forth in this
Section shall apply throughout the Term. Except as expressly permitted in this
Agreement, the Developer represents and agrees that the Developer has not made or
created, and will not make or create or suffer to be made or created, any Transfer, either
voluntarily or by operation of law without the prior written approval of the Agency.
Any Transfer made in contravention of this Section 9.3 shall be void and shall be
deemed to be a default under this Agreement whether or not the Developer knew of or
participated in such Transfer.
102Z4%10%85.6 21
Section 9.4 Permitted Transfers. Notwithstanding the provisions of Section
9.3, the following Transfers shall be permitted and are hereby approved by the Agency
subject to meeting the requirements of Section 9.5:
(a) Any Transfer creating a Security Financing Interest permitted
pursuant to the approved Financing Plan;
(b) Any Transfer directly resulting from the foreclosure of a Security
Financing Interest or the granting of a deed in lieu of foreclosure of a Security Financing
Interest or as otherwise permitted under Article 11; and
(c) Any Transfer solely and directly resulting from the death or
incapacity of an individual.
Section 9.5 Effectuation of Certain Permitted Transfers. No Transfer of this
Agreement permitted pursuant to Section 9.4 (other than a Transfer pursuant to a Security
Financing Interest under Section 9.4(a) or (b)) shall be effective unless, at the time of the
Transfer, the person or entity to which such Transfer is made, by an instrument in writing
reasonably satisfactory to the Agency and in form recordable among the land records,
shall expressly assume the obligations of the Developer under this Agreement and agree
to be subject to the conditions and restrictions to which the Developer is subject arising
during this Agreement, to the fullest extent that such obligations are applicable to the
particular portion of or interest in the Development conveyed in such Transfer. Anything
to the contrary notwithstanding, the holder of a Security Financing Interest whose interest
shall have been acquired by, through or under a Security Financing Interest or shall have
been derived immediately from any holder thereof shall not be required to give to Agency
such written assumption until such holder or other person is in possession of the Property
or entitled to possession thereof pursuant to enforcement of the Security Financing
Interest.
In the absence of specific written agreement by the Agency, no such Transfer,
assignment or approval by the Agency shall be deemed to relieve the Developer or any
other party from any obligations under this Agreement.
Section 9.6 Other Transfers with Agency Consent. The Agency may, in its
sole discretion, approve in writing other Transfers as requested by the Developer. In
connection with such request, there shall be submitted to the Agency for review all
instruments and other legal documents proposed to effect any such Transfer. If a
requested Transfer is approved by the Agency such approval shall be indicated to the
Developer in writing. Such approval shall be granted or denied by the Agency within
thirty (30) days of receipt by the Agency of Developer's request for approval of a
Transfer.
102\04klO%85.6 22
ARTICLE 10
DEFAULT AND REMEDIES
Section 10.1 General Applicabili . The provisions of this Article 9 shall
govern the parties' remedies for breach or failure of this Agreement.
Section 10.2 No Fault of Parties. The following events constitute a basis for a
party to terminate this Agreement without the fault of the other:
(a) The Developer, despite good faith and diligent efforts, is unable to
satisfy all of the conditions precedent to the Agency's obligation to convey the Property
to the Developer set forth in Article 3 and Article 4 by not later than June 30, 2000 as this
may be extended pursuant to Section 3.8, or such later date mutually agreed upon by the
parties; or
(b) The Agency, despite good faith and diligent efforts, is unable to
convey the Property to the Developer and the Developer is otherwise entitled to such
conveyance.
Upon the happening of any of the above-described events, and at the election of
either party, this Agreement may be terminated by thirty (30) days written notice to the
other party. Upon the effective date of the notice of termination, the Good Faith Deposit
(and any interest accrued thereon) shall be returned to the Developer and neither party
shall have any rights against or liability to the other under this Agreement, except that the
provisions of Sections 8.3(b), 12.2 and 12.8 shall survive such termination and remain in
full force and effect.
Section 10.3 Fault of Agcy. Except as to events constituting a basis for
termination under Section 10.2, the following events each constitute an Event of Default
by the Agency and a basis for the Developer to take action against the Agency:
(a) The Agency, without good cause, fails to convey the Property to
the Developer within the time and in the manner set forth in Article 5 and the Developer
is otherwise entitled by this Agreement to such conveyance; or
(b) The Agency breaches any other material provision of this
Agreement.
Upon the happening of any of the above-described events, the Developer shall
first notify the Agency in writing of its purported breach or failure, giving the Agency
sixty (60) days from receipt of such notice to cure or, if cure cannot be accomplished
within sixty (60) days, to commence to cure such breach, failure, or act. In the event the
Agency does not then so cure within said sixty days, or if the breach or failure is of such
a nature that it cannot be cured within (60) days, the Agency fails to commence to cure
within such 60 days and thereafter diligently complete such cure within a reasonable time
thereafter but in no event later than one hundred and twenty (120) days, then the
1021041109685.6 23
Developer shall be eligible for the return of the Good Faith Deposit and shall be afforded
all of its rights at law or in equity, by taking all or any of the following remedies: (1)
terminating in writing this Agreement (provided, however, that the indemnification
provisions of Sections 8.3(b), 12.2 and 12.8 shall survive such termination); (2)
prosecuting an action for damages or specific performance, (3) recovering the Good Faith
Deposit (and any interest accrued thereon), and (4) seeking any other remedy available at
law or equity.
Section 10.4 Fault of Develo=. Except as to events constituting a basis for
termination under Section 10.2. the following events each constitute an Event of Default
by the Developer and a basis for the Agency to take action against the Developer:
(a) The Developer fails to exercise good faith and diligent efforts to
satisfy, within the time and in the manner set forth in Article 3 and Article 4, one or more
of the conditions precedent to the Agency's obligation to convey the Property to the
Developer and the Developer's obligation to purchase the Property from the Agency; or
(b) The Developer refuses to accept conveyance from the Agency of
the Property within the time periods and under the terms set forth in Article 4; or
(c) The Developer constructs or attempts to construct the
Improvements in violation of Article 6; or
(d) The Developer fails to commence or complete construction of the
Improvements within the times set forth in Article 6, or abandons or suspends
construction of the Improvements prior to completion of all construction for a period of
sixty (60) days after written notice by the Agency of such abandonment or suspension;
(e) A Transfer occurs, either voluntarily or involuntarily, in violation
of Article 8;
(fl Any representation or warranty contained in this Agreement or in
any application, financial statement, certificate or report submitted to the Agency in
connection with this Agreement proves to have been incorrect in any material and
adverse respect when made.
(g) A court having jurisdiction shall have made or entered any decree
or order (1) adjudging the Developer to be bankrupt or insolvent, (2) approving as
properly filed a petition seeking reorganization of the Developer or seeking any
arrangement for the Developer under the bankruptcy law or any other applicable debtor's
relief law or statute of the United States or any state or other jurisdiction, (3) appointing a
receiver, trustee, liquidator, or assignee of the Developer in bankruptcy or insolvency or
for any of their properties, or (4) directing the winding up or liquidation of the Developer,
if any such decree or order described in clauses (1) to (4), inclusive, shall have continued
unstayed or undischarged for a period of ninety (90) days unless a lesser time period is
permitted for cure under any other mortgage on the Property, in which event such lesser
102waX109M.6 24
time period will apply under this subsection 0) as well; or the Developer shall have
admitted in writing its inability to pay its debts as they fall due or shall have voluntarily
submitted to or filed a petition seeking any decree or order of the nature described in
clauses (1) to (4), inclusive; or
(h) The Developer shall have assigned its assets for the benefit of its
creditors or suffered a sequestration or attachment of or execution on any substantial part
of its property, unless the property so assigned, sequestered, attached or executed upon
shall have been returned or released within ninety (90) days after such event (unless a
lesser time period is permitted for cure under any other mortgage on the Property, in
which event such lesser time period shall apply under this subsection (k) as well) or prior
to sooner sale pursuant to such sequestration, attachment, or execution; or
(i) The Developer shall have voluntarily suspended its business or, if
the Developer is a partnership or limited liability company, the partnership or limited
liability company shall have been dissolved or terminated; or
0) There shall occur any default declared by any lender under any
loan document related to any loans secured by a deed of trust on the Development; or
Agreement(k) The Developer breaches any other material provision of this
.
Upon the happening of any of the above-described events, the Agency shall first
notify the Developer in writing of its purported breach, failure or act above described,
giving the Developer sixty (60) days from receipt of such notice to cure, or, if cure cannot
be accomplished within said sixty (60) days, to commence to cure such breach, failure, or
act. In the event the Developer fails to cure within said sixty days, or if such breach is of
a nature that it cannot be cured within sixty (60) days, Developer fails to commence to
cure within said sixty (60) days and diligently complete such cure within a reasonable
time thereafter but in no event later than one hundred and twenty (120) days, then the
Developer shall forfeit to the Agency the Good Faith Deposit (and any interest accrued
thereon) and the Agency shall be afforded all of its rights at law or in equity including
but not limited to any or all of the following remedies: (1) termination of this Agreement
by written notice to the Developer; provided, however, that the Agency's remedies
pursuant to this Article 9 or any other Agency Document and the indemnification
provisions of Sections 8.3(b), 12.2 and 12.8 shall survive such termination; (2)
prosecuting an action for damages; and (3) any remedy allowed by law.
Section 10.5 Right of Reverter. In the event that, following close of Escrow,
this Agreement is terminated pursuant to Section 10.4 and such termination occurs prior
to issuance of a Certificate of Completion for all of the Improvements, then the Agency
shall have the right to reenter and take possession of the Property and all improvements
thereon and to revest in the Agency the estate of the Developer in the Property.
1021041109685.6 25
Upon revesting in the Agency of title to the Property, the Agency shall promptly
use its best efforts to resell it consistent with its obligations under state law. Upon sale
the proceeds shall be applied as follows:
(a) First, to reimburse the Agency for any costs it incurs in managing
or selling the Property (after exercising its right of reverter), including but not limited to
amounts to discharge or prevent liens or encumbrances arising from any acts or
omissions of the Developer;
(b) Second, to reimburse the Agency for damages to which it is
entitled under this Agreement by reason of the Developer's default;
(c) Third, to the Developer up to the sum of the amount of the
purchase price paid to the Agency by the Developer for the Property pursuant to Section
5.4 and the reasonable cost of the improvements the Developer has placed on the
Property and such other reasonable costs Developer has incurred directly in connection
with development of the Property; and
(d) Fourth, any balance to the Agency.
Section 10.6 Right to Cure at Develop is Exper ese. The Agency shall have the
right to cure any monetary default by the Developer under a loan in connection with the
Development; provided, however, that if the Developer is in good faith contesting a claim
of default under a loan and the Agency's interest under this Agreement are not
imminently threatened by such default, in the Agency's sole judgment, the Agency shall
not have the right to cure such default. The Developer agrees to reimburse the Agency
for any funds advanced by the Agency to cure a monetary default by Developer upon
demand therefore, together with interest thereon at the lesser of the rate of eight percent
(8%) per annum or the maximum rate permitted by law from the date of expenditure until
the date of reimbursement.
Section 10.7 Riehts of Mortga ePc. Any rights of the Agency under this Article
10 shall not defeat, limit or render invalid any Security Financing Interest permitted by
this Agreement or any rights provided for in this Agreement for the protection of holders
of Security Financing Interests. Any conveyance or reverter of the Property to the
Agency pursuant to this Article 10 shall be subject to Security Financing Interests
permitted by this Agreement.
Section 10.8 Remedies Cum dative. No right, power, or remedy given by the
terms of this Agreement or this Agreement is intended to be exclusive of any other right,
power, or remedy; and each and every such right, power, or remedy shall be cumulative
and in addition to every other right, power, or remedy given by the terms of any such
instrument, or by any statute or otherwise. Neither the failure nor any delay to exercise
any such rights and remedies shall operate as a waiver thereof, nor shall any single or
partial exercise of any such right or remedy preclude any other or further exercise of such
right or remedy, or any other right or remedy.
102\0CIoss85.6 26
Section 10.9 Waiver of Tenn c and Conditions. The Agency Executive Director
may at his or her discretion waive in writing any of the terms and conditions of this
Agreement without the Developer completing an amendment to this Agreement. No
waiver of any default or breach by the Developer hereunder shall be implied from any
omission by the Agency to take action on account of such default if such default persists
or is repeated, and no express waiver shall affect any default other than the default
specified in the waiver, and such waiver shall be operative only for the time and to the
extent therein stated. Waivers of any covenant, term, or condition contained herein shall
not be construed as a waiver of any subsequent breach of the same covenant, term, or
condition. The consent or approval by the Agency to or of any act by the Developer
requiring further consent or approval shall not be deemed to waive or render unnecessary
the consent or approval to or of any subsequent similar act. The exercise of any right,
power, or remedy shall in no event constitute a cure or a waiver of any default under this
Agreement or this Agreement, nor shall it invalidate any act done pursuant to notice of
default, or prejudice the Agency in the exercise of any right, power, or remedy hereunder
or under this Agreement, unless in the exercise of any such right, power, or remedy all
obligations of the Developer to Agency are paid and discharged in full.
ARTICLE 11
SECURITY FINANCING AND RIGHTS OF HOLDERS
Section 11.1 No Encumbrances xcept for Development Pum, o__ses.
Notwithstanding any other provision of this Agreement, mortgages and deeds of trust, or
any other reasonable method of security are permitted to be placed upon the Property but
only for the purpose of securing loans approved by the Agency pursuant to the approved
Financing Plan. Mortgages, deeds of trust, or other reasonable security instruments
securing loans approved by the Agency pursuant to the approved Financing Plan are each
referred to as a "Security Financing Interest." The words "mortgage" and "deed of trust"
as used in this Agreement include all other appropriate modes of financing real estate
acquisition, construction, and land development.
Section 11.2 Holder Not Obli Wed to-Construct. The holder of any Security
Financing Interest authorized by this Agreement is not obligated to construct or complete
any improvements or to guarantee such construction or completion; nor shall any
covenant or any other provision in conveyances from the Agency to the Developer
evidencing the realty comprising the Property or any part thereof be construed so to
obligate such holder. However, nothing in this Agreement shall be deemed to permit or
authorize any such holder to devote the Property or any portion thereof to any uses, or to
construct any improvements thereon, other than those uses of improvements provided for
or authorized by this Agreement.
Section 11.3 Notice of Default -and Right to cure. Whenever the Agency
pursuant to its rights set forth in Article 10 of this Agreement delivers any notice or
demand to the Developer with respect to the commencement, completion, or cessation of
102%04~iWW5.6 27
the construction of the Improvements, the Agency shall at the same time deliver to each
holder of record of any Security Financing Interest creating a lien upon the Property or
any portion thereof a copy of such notice or demand. Each such holder shall (insofar as
the rights of the Agency are concerned) have the right, but not the obligation, at its
option, within ninety (90) days after the receipt of the notice, to cure or remedy or
commence to cure or remedy any such default or breach affecting the Property which is
subject to the lien of the Security Financing Interest held by such holder and to add the
cost thereof to the security interest debt and the lien on its security interest. Nothing
contained in this Agreement shall be deemed to permit*or authorize such holder to
undertake or continue the construction or completion of the Improvements (beyond the
extent necessary to conserve or protect such improvements or construction already made)
without first having expressly assumed in writing the Developer's obligations to the
Agency relating to such Improvements under this Agreement. The holder in that event
must agree to complete, in the manner provided in this Agreement, the Improvements to
which the lien or title of such holder relates. Any such holder properly completing such
Improvements pursuant to this paragraph shall assume all rights and obligations of
Developer under this Agreement and shall be entitled, upon written request made to the
Agency, to a Certificate of Completion from the Agency.
Section 11.4 Failure of Holder to Complete Improvements. In any case where
six (6) months after default by the Developer in completion of construction of the
Improvements under this Agreement, the holder of record of any Security Financing
Interest, having first exercised its option to construct, has not proceeded diligently with
construction, the Agency shall be afforded those rights against such holder it would
otherwise have against Developer under this Agreement.
Section 11.5 Rhzht-of gay to Cure. In the event of a default or breach by the
Developer of a Security Financing Interest prior to the completion of development, and
the holder has not exercised its option to complete the development called for on the
Property, the Agency may cure the default, prior to the completion of any foreclosure. In
such event the Agency shall be entitled to reimbursement from the Developer of all costs
and expenses incurred by the Agency in curing the default. The Agency shall also be
entitled to a lien upon the Property or any portion thereof to the extent of such costs and
disbursements. The Agency agrees that such lien shall be subordinate to any Security
Financing Interest, and the Agency shall execute from time to time any and all
documentation reasonably requested by Developer to effect such subordination.
Section 11.6 Ri ht of ge~ncv to Satisfy Other Liens. After the conveyance of
title to the Property or any portion thereof and after the Developer has had a reasonable
time to challenge, cure or satisfy any liens or encumbrances on the Property or any
portion thereof, the Agency shall have the right to satisfy any such lien or encumbrances;
provided, however, that nothing in this Agreement shall require the Developer to pay or
make provision for the payment of any tax, assessment, lien or charge so long as the
Developer in good faith shall contest the validity or amount therein and so long as such
delay in payment shall not subject the Property or any portion thereof to forfeiture or sale.
10704\109685.6 28
Section 11.7 Holder to be Noti fled. The provisions of this Article 11 shall be
incorporated into the relevant deed of trust or mortgage evidencing each Security
Financing Interest to the extent deemed necessary by, and in form and substance
reasonably satisfactorily to the Agency, or shall be acknowledged by the holder of a
Security Financing Interest prior to its coming into any security right or interest in the
Property.
ARTICLE 12
GENERAL PROVISIONS
Section 12.1 Notices. Demands and Communications. Formal notices,
demands, and communications between the Agency and the Developer shall be
sufficiently given if and shall not be deemed given unless dispatched by registered or
certified mail, postage prepaid, return receipt requested or delivered personally, to the
principal office of the Agency and the Developer as follows:
Agency:
Tiburon Redevelopment Agency
1505 Tiburon Boulevard
Tiburon, California 94920
Attention: Executive Director
With copy to:
Town Attorney
1505 Tiburon Boulevard
Tiburon, California 94920
Developer:
Ned's Way Garden Homes, LLC
1104 Lincoln Avenue
San Rafael, Ca 94901
Attn: Bruce Burman
Such written notices, demands and communications may be sent in the same
manner to such other addresses as the affected party may from time to time designate by
mail as provided in this Section 12.1.
Section 12.2 Right of Entrv Prior to Closing. Prior to the close of Escrow, the
Developer, or its designee, shall have the right to enter the Property by giving the Agency
forty eight (48) hours prior written notice for the purpose of conducting inspections and
tests of the land or any structures which comprise the Property. The Developer shall
defend, indemnify and hold harmless the Agency and Town and its elected
1OZ04%109se5.6 29
representatives, officers, employees and agents from any claim or damage arising from
the Developer's entry onto the Property pursuant to Section 5.3 or this Section 12.2.
Section 12.3 Non-Liability of Agency Officials,Em-ployees and Agents; Non-
Liability of Developer's Members. No member, official, employee or agent of the
Agency or the Town shall be personally liable to the Developer, or any successor in
interest, in the event of any default or breach by the Agency or for any amount which
may become due to the Developer or successor or on any obligation under the terms of
this Agreement.
Section 12.4 Forced Delav. In addition to specific provisions of this
Agreement, performance by either party hereunder shall not be deemed to be in default
where delays or defaults are due to war; insurrection; strikes; lock-outs; riots; floods;
earthquakes; fires; casualties; acts of God; acts of the public enemy; epidemics;
quarantine restrictions; freight embargoes; governmental restrictions or priority; litigation
(including suits filed by third parties concerning or arising out of this Agreement);
weather or soils conditions which, in the opinion of the Developer's contractor, will
necessitate delays; inability to secure necessary labor, materials or tools; delays of any
contractor, sub-contractor or supplier; acts of the other party; acts or failure to act of any
public or governmental agency or entity (other than the acts or failure to act of the
Agency); or any other causes (other than Developer's inability to obtain financing for the
Improvements) beyond the control or without the fault of the party claiming an extension
of time to perform. An extension of time for any cause will be deemed granted if notice
by the party claiming such extension is sent to the other within ten (10) days from the
date the party seeking the extension first discovered the cause and such extension of time
is not rejected in writing by the other party within ten (10) days of receipt of the notice.
Times of performance under this Agreement may also be extended in writing by the
Agency and the Developer.
Section 12.5 Inspection of Books and Records. Upon request, the Developer
shall permit the Agency to inspect at reasonable times and on a confidential basis those
books, records and all other documents of the Developer necessary to determine
Developer's compliance with the terms of this Agreement. The Developer also has the
right at all reasonable times to inspect the books, records and all other documentation of
the Agency pertaining to its obligations under this Agreement.
Section 12.6 Provision Not M .riz d with-Deeds. None of the provisions of this
Agreement are intended to or shall be merged by any grant deed transferring title to any
real property which is the subject of this Agreement from Agency to Developer or any
successor in interest, and any such grant deed shall not be deemed to affect or impair the
provisions and covenants of this Agreement.
Section 12.7 Title of Parts and -Sections. Any titles of the articles, sections or
subsections of this Agreement are inserted for convenience of reference only and shall be
disregarded in construing or interpreting any part of its provision.
ioi\oa„ossss.s 30
Section 12.8 General Inde nificration. The Developer agrees to indemnify,
protect, hold harmless and defend (by counsel reasonably satisfactory to the Agency) the
Agency, its boardmembers, officers and employees, from all suits, actions, claims, causes
of action, costs, demands, judgments and liens arising out of the Developer's performance
or non-performance under any of this Agreement, or any other agreement executed
pursuant to this Agreement, except as directly caused by the Agency's willful
misconduct, gross negligence or breach of this Agreement. The provisions of this section
shall survive expiration of the Term or other termination of this Agreement, and shall
remain in full force and effect.
Section 12.9 Applicable Law. This Agreement shall be interpreted under and
pursuant to the laws of the State of California.
Section 12.10 No Brokers. Each party represents to the other that it has not had
any contact or dealings regarding the Property, or any communication in connection with
the subject matter of this transaction, through any real estate broker or other person who
can claim a right to a commission or finder's fee. If any broker or finder makes a claim
for a commission or finder's fee based upon a contact, dealings, or communications, the
party through whom the broker or finder makes this claim shall indemnify, defend with
counsel of the indemnified party's choice, and hold the indemnified party harmless from
all expense, loss, damage and claims, including the indemnified party's attorneys' fees, if
necessary, arising out of the brokers or finders claim. The provisions of this section
shall survive expiration of the Term or other termination of this Agreement, and shall
remain in full force and effect.
Section 12.11 Severahil ity- If any term, provision, covenant or condition of this
Agreement is held by a court of competent jurisdiction to be invalid, void or
unenforceable, the remainder of the provisions shall continue in full force and effect
unless the rights and obligations of the parties have been materially altered or abridged by
such invalidation, voiding or unenforceability.
Section 12.12 Leeal Actions. In the event any legal action is commenced to
interpret or to enforce the terms of this Agreement or to collect damages as a result of any
breach thereof, the party prevailing in any such action shall be entitled to recover against
the party not prevailing all reasonable attorney's fees and costs incurred in such action.
Section 12.13 Binding ~i lpon Successors. This Agreement shall be binding upon
and inure to the benefit of the heirs, administrators, executors, successors in interest and
assigns of each of the parties hereto except that there shall be no Transfer of any interest
by any of the parties hereto except pursuant to the terms of this Agreement. Any
reference in this Agreement to a specifically named party shall be deemed to apply to any
successor, heir, administrator, executor or assign of such party who has acquired an
interest in compliance with the terms of this Agreement, or under law.
The covenants and restrictions set forth in this Agreement shall run with the land,
and shall bind all successors in title to the Property. However, on the termination of this
10MAIossas.6 31
Agreement, such covenants and restrictions shall expire. Each and every contract, deed,
or other instrument hereafter executed covering or conveying the Property shall be held
conclusively to have been executed, delivered, and accepted subject to such covenants
and restrictions, regardless of whether such covenants or restrictions are set forth in such
contract, deed, or other instrument, unless the Agency expressly releases the Property
from the requirements of this Agreement.
Section 12.14 Parties Not Co-Venturers. Nothing in this Agreement is intended
to or does establish the parties as partners, co-venturers, or principal and agent with one
another.
Section 12.15 Warranties. The Agency expresses no warranty or representation
to the Developer as to fitness or condition of the Property the subject of this Agreement
for the building or construction to be conducted thereon.
Section 12.16 Time of the Essence. In all matters under this Agreement, the
parties agree that time is of the essence.
Section 12.17 Action by-the Ag .nc . Except as may be otherwise specifically
provided in this Agreement or another Agency Document, whenever any approval,
notice, direction, finding, consent, request, waiver, or other action by the Agency is
required or permitted under this Agreement or another Agency Document, such action
may be given, made, or taken by the Agency Executive Director, or by any person who
shall have been designated in writing to the Developer by the Agency Executive Director,
without further approval by the Agency Board. Any such action shall be in writing.
Section 12.18 Identity and Authority of Developer,. The person executing this
Agreement on behalf of the Developer does hereby covenant and warrant: that the
Developer is and shall remain in good standing and qualified to do business in the State
of California; that the Developer has full right, power and authority to enter into this
Agreement and to carry out all actions on its part contemplated by this Agreement; that
the execution and delivery of this Agreement were duly authorized by proper action of
the Developer and no consent, authorization or approval of any person is necessary in
connection with such execution and delivery or to carry out all actions on the Developer's
part contemplated by this Agreement, except as have been obtained and are in full force
and effect or are not required to be obtained until a later date, such as the certificate of
occupancy; that the person executing this Agreement on behalf of the Developer has full
authority to do so; and that this Agreement constitutes the valid, binding and enforceable
obligation of the Developer.
Section 12.19 Complete Understanding of the Parties. This Agreement is
executed in three (3) duplicate originals each of which is deemed to be an original. This
Agreement and the attached exhibits constitute the entire understanding and agreement of
the parties with respect to the matters set forth in this Agreement.
10204\109sa5.6 32
Section 12.20 Entrv by the he Agency. The Developer shall permit the Agency,
through its officers, agents, or employees, at all reasonable times to enter into the
Development (a) to inspect the work of construction to determine that the same is in
conformity with the requirements of this Agreement, and (b), following completion of
construction, to inspect the ongoing operation and management of the Development to
determine that the same is in conformance with the requirements of this Agreement. The
Developer acknowledges that the Agency is under no obligation to supervises, inspect, or
inform the Developer of the progress of construction, or operations and the Developer
shall not rely upon the Agency therefore. Any inspection by the Agency during the
construction is entirely for its purposes in determining whether the Developer is in
compliance with this Agreement and is not for the purpose of determining or informing
the Developer of the quality or suitability of construction. The Developer shall rely
entirely upon its own supervision and inspection in determining the quality and suitability
of the materials and work, and the performance of architects, subcontractors, and material
suppliers.
102\04\109ss5.6 33
IN WITNESS WHEREOF, the Agency and the Developer have executed this
Agreement in triplicate on or as of the date first above written.
ATTEST:
ev a
By: j
APPROVED AS TO FORM:
By:
Y
DEVELOPER:
NED'S WAY GARDEN HOMES, LLC
Its: !YN-~+2
AGENCY:
TIBURON REDEVELOPMENT
AGENCY, a public body, corporate
and politic
By:
obert L. Kleinert
Its: Executive Director
102MI109685.6 34
ALL-PURPOSE ACKNOWLEDGMENT
F• -ONNOW 0-41NOW 0 .41omw *-meow* -QdENW•-"now•-ONNOW •.domw 0.0000.0 .41OWN. •.avow-•.4amw •
• State of California
County of N SS.
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On l~ I before me P L- C - ~ 1(16
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~ (DATE) (NOTARY)
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personally appeared (.~1~114
SIGNER(S)
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❑ personally known to me - OR- proved to me on the basis of satisfactory
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• evidence to be the person(s) whose name(s) •
is/are subscribed to the within instrument and
I
• acknowledged to me that he/she/they executed •
the same in his/her/their authorized
I
capacity(ies), and that by his/her/their •
signature(s) on the instrument the person(s),
I
or the entity upon behalf of which the •
I D. L. CRANE
Le Comm. # 1119443 person(s) acted, executed the instrument.
NOTARY PUBLIC - CALIFORNIAMarin County My Comm. Expires Dec. 812000 • WITNESS my hand a d official seal. •
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all I
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NOTARY'S SIGNATURE •
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OPTIONAL INFORMATION •
The information below is not required by law. However, it could prevent fraudulent attachment of this acknowl-
I
edgment to an unauthorized document.
CAPACITY CLAIMED BY SIGNER (PRINCIPAL) DESCRIPTION OF ATTACHED DOCUMENT
❑ INDIVIDUAL r
~ L~CORPORATE OFFICER /
E'M
TITLE(S) S) TfTLE OR TYPE OF 9PCUMENT
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❑ PARTNER(S)
• ❑ ATTORNEY-IN-FACT
❑ TRUSTEE(S) NUMBER OF PAGES
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• ❑ GUARDIAN/CONSERVATOR •
❑ OTHER:
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DATE OF DOCUMENT
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SIGNER IS REPRESENTING:
NAME OF PERSON(S) OR ENTITY(IES)
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•
~ ~ S - OTHER ~
Leladowe *-MEOW
APA 1/94 VALLEY-SIERRA, 800-362-3369
ALL-PURPOSE ACKNOWLEDGMENT
F 0
• State of California
County of /l~ ( ~X k1 SS.
On 6)qlvj ~ Z' before me,
• (DATE) 1 7 (NOTARY) •
personally appeared v / ~,rA / L
SIGNER(S)
personally known to me - OR- ❑ proved to me on the basis of satisfactory
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• evidence to be the person(s) whose name(s) •
is/are subscribed to the within instrument and
• acknowledged to me that he/she/they executed •
the same in his/her/their authorized
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signature(s) on the instrument the person(s),
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' D. L. CRANE person(s) acted, executed the instrument.
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Comm, # 11194,43
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• NOTARY PUBLIC • CALIFORNIA
• N y Merin County WITNESS my hand and official seal. •
My Comm, Expires Dec. 8, 2000
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• NOTARY'S SIGNATURE - •
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' OPTIONAL INFORMATION •
The information below is not required by law. However, it could prevent fraudulent attachment of this ackn7
• edgment to an unauthorized document. •
CAPACITY CLAIMED BY SIGNER (PRINCIPAL) DESCRIPTION OF ATTACHED DOCUMENT
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❑ INDIVIDUAL
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TITLE(S) I
❑ PARTNER(S)
• ❑ ATTORNEY-IN-FACT
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❑ TRUSTEE(S) NUMBER OF PAGES
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• ❑ GUARDIAN/CONSERVATOR •
OTHER: C G/ A t~-E
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NAME OF PERSON(S) OR ENTTTY(IES)
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APA 1/94 VALLEY-SIERRA, 800-362-3369
EX 03IT A
LEGAL DESCRIPTION OF THE PROPERTY
ALL THAT CERTAIN real property situate in the City of Tiburon, County of Marin,
State of California, described below as follows:
PARCEL ONZ :
Parcel One, as shown upon that certain Parcel Map entitled "Parcel
Lands of the-Town of Tiburon.3382 O.R. 497, Parcel Two 16 P.M. 37,
Tiburon, Karin County, California", filed for record December 11,
Book 26 of Parcel Maps, at Page 43, Marin County Records.
PARCEL TWO:
A non-exclusive easement for access, utility,
drainage
purposes over that certain area desiated as "E ' ,
that certain Parcel:Ma►p entitled, "Parcel MaP of the
Landseof t
Tiburon 3382 O.R. 497, Parcel Two.16 P. he
California", filed for record December 11,319971inrBook M26io
at Page 43, Marin County Records. o
PARCEL THRi :
Map,
1997 in
and parking
a8 shown upon
Town of
County,
f Parcel Maps,
A non-exclusive easement for access, utility and storm drainage purposes
over that certain area designated as "Easement I", as shown upon that
certain Parcel Map entitled, 'Parcel Map, Lands of the Town of Tiburon
3382 O.R. 497, Parcel Two 16 P.M. 37, Tiburon, Marin County, California",
filed for record December 11, 1997 in Book 26 of Parcel Maps, at Pa e 43,
Marin County Records. g
EXHIBIT B
FORM OF AGENCY GRANT DEED
102\04\109685.6
FORM OF AGENCY GRANT DEED
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
Tiburon Redevelopment Agency
1505 Tiburon Boulevard
Tiburon, California 94920
Attention: Executive Director
No fee for recording pursuant to
Government Code Section 27383
GRANT DEED
For valuable consideration, the receipt of which is hereby acknowledged,
THE TIBURON REDEVELOPMENT AGENCY, a public body, corporate and politic,
of the State of California ("Grantor"), acting to carry out redevelopment purposes pursuant to the
Community Redevelopment Law of the State of California, hereby grants to NED'S WAY
GARDEN HOMES LLC, a California limited liability company ("Grantee"), the real property
(the Property) described in Exhibit A attached hereto and incorporated in this Grant Deed by
this reference.
1. The Property is conveyed subject to the Disposition and Development (the
"Agreement") by and between Grantor and Grantee, executed as of June 17, 1998.
2. The Grantee hereby covenants and agrees, for itself and its successors and
assigns, that the Grantee and such successors and assigns shall promptly begin and diligently
prosecute to completion the redevelopment of the Property through the construction of the
improvements required to be constructed pursuant to the Agreement (the "Improvements"), and
that such construction shall be commenced and completed within the times provided in the
Agreement.
Promptly after completion of the Improvements on the Property in accordance with the
provisions of the Agreement, the Grantor will furnish the Grantee with an appropriate instrument
so certifying (a "Certificate of Completion"). Such Certificate of Completion by the Grantor
shall be a conclusive determination of satisfaction and termination of the agreements and
covenants in the Agreement and in this Grant Deed with respect to the obligations of the Grantee
and its successors and assigns to construct the Improvements and the dates for the beginning and
completion of such construction.
1021041112187.1
3. The Grantee hereby covenants and agrees, for itself and its successors and
assigns, that during construction and thereafter, the Grantee shall devote the Property only to the
uses specified in the Agreement.
4. The Grantee hereby covenants and agrees, for itself and its successors and
assigns, that during construction and thereafter, the Grantee shall operate and maintain the
Property and Improvements thereon in compliance with all requirements for operation and
maintenance set forth in the Agreement.
5. The Grantee covenants and agrees, for itself and its successors and assigns, that
there shall be no discrimination against or segregation of any person or group of persons on
account of race, color, creed, religion, sex, sexual orientation, marital status, national origin,
ancestry or disability in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of
the Property, nor shall the Grantee itself or any person claiming under or through it establish or
permit any such practice or practices of discrimination or segregation with reference to the
selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or
vendees in the Property and the Improvements thereon.
All deeds, leases or contracts made relative to the Property and the Improvements thereon
or any part thereof, shall contain or be subject to substantially the following non-discrimination
clauses:
(a) In deeds: "The grantee herein covenants by and for itself, its heirs, executors,
administrators, and assigns, and all persons claiming under or through them, that
there shall be no discrimination against or segregation of, any person or group of
persons on account of race, color, creed, religion, sex, sexual orientation, marital
status, national origin, ancestry or disability in the sale, lease, sublease, transfer,
use, occupancy, tenure or enjoyment of the land herein conveyed, nor shall the
grantee or any person claiming under or through the grantee establish or permit
any such practice or practices of discrimination or segregation with reference to
the selection, location, number, use or occupancy of tenants, lessees, subtenants,
sublessees or vendees in the land herein conveyed. The foregoing covenants shall
run with the land."
(b) In leases: "The lessee herein covenants by and for itself, its heirs, executors,
administrators and assigns, and all persons claiming under or through the Grantee,
and this lease is made and accepted upon and subject to the following conditions:
"That there shall be no discrimination against or segregation of, any person or
group of persons on account of race, color, creed, religion, sex, sexual orientation,
marital status, national origin, ancestry, or disability in the leasing, subleasing,
transferring, use, occupancy, tenure or enjoyment of the land herein leased, nor
shall the lessee, or any person claiming under or through the lessee, establish or
permit any such practice or practices of discrimination or segregation with
reference to the selection, location, number, use or occupancy of tenants, lessees,
subtenants or vendees in the land herein leased."
102\04\112187.1 2
(c) In contracts: "There shall be no discrimination against or segregation of, any
person or group of persons on account of race, color, creed, religion, sex, sexual
orientation, marital status, national origin, ancestry or disability in the sale, lease,
sublease, transfer, use, occupancy, tenure or enjoyment of the land, nor shall the
transferee, or any person claiming under or through the transferee, establish or
permit any such practice or practices of discrimination or segregation with
reference to the selection, location, number, use or occupancy of tenants, lessees,
subtenants or vendees in the land."
6. The Grantee represents and agrees that the Property will be used for the purposes
of timely redevelopment as set forth in the Agreement and not for speculation in landholding.
The Grantee further recognizes that in view of the following factors, the qualifications of the
Grantee are of particular concern to the community and the Grantor:
a. The importance of the redevelopment of the Property to the general
welfare of the community; and
b. The land acquisition assistance and other public aids that have been made
available by law and by the government for the purpose of making such redevelopment possible;
and
c. The reliance by the Grantor upon the unique qualifications and ability of
the Grantee to serve as the catalyst for development of the Property; and
d. The fact that a change in ownership or control of the owner of the
Property, or of a substantial part thereof, or any other act or transaction involving or resulting in
a significant change in ownership or with respect to the identity of the parties in control of the
Grantee or the degree thereof is for practical purposes a transfer or disposition of the Property;
and
e. The fact that the Property is not to be acquired or used for speculation, but
only for development in accordance with the Agreement; and
f The importance to the Grantor and the community of the standards of use
and maintenance of the Property.
The Grantee further recognizes that it is because of such qualifications and
identity that the Grantor has entered into the Agreement and has conveyed the Property to the
Grantee.
For the reasons stated above, the Grantee covenants, for itself and its successors
and assigns, that there shall be no sale, transfer, assignment, conveyance, lease, pledge or
encumbrance of the Agreement, or the Property and the Improvements thereon or any part
thereof, or of other ownership interest in the Grantee in violation of the Agreement.
1OZ04\1 92187.1 3
No voluntary or involuntary successor in interest of the Grantee shall acquire any rights
or powers under this Grant Deed or the Agreement except as expressly set forth in this Grant
Deed or the Agreement.
7. The covenants contained in Sections 2, 3, 4, and 6 regarding construction, use,
operation and maintenance, and transfers of interests, shall remain in effect for the Term of the
Agreement (as defined in the Agreement). The covenants contained in Section 5 regarding non-
discrimination shall remain in effect in perpetuity.
8. No violation or breach of the covenants, conditions, restrictions, provisions or
limitations contained in this Grant Deed shall defeat or render invalid or in any way impair the
lien or charge of any mortgage, deed of trust or other financing or security instrument permitted
by the Agreement or otherwise approved by the Agency; provided, however, that any successor
of Grantee to the Property shall be bound by such covenants, conditions, restrictions, limitations
and provisions, whether such successor's title was acquired by foreclosure, deed in lieu of
foreclosure, trustee's sale or otherwise.
9. The covenants contained in Sections 2, 3, 4, 5 and 6 of this Grant Deed shall,
without regard to technical classification or designation, legal or otherwise specifically provided
in this Grant Deed, be, to the fullest extent permitted by law and equity, binding for the benefit
and in favor of and enforceable by the Grantor, its successors and assigns, the Town of Tiburon
and any successor in interest to the Property or any part thereof, and such covenants shall run in
favor of the Grantor and such aforementioned parties for the entire period during which such
covenants shall be in force and effect, without regard to whether the Grantor is or remains an
owner of any land or interest therein to which such covenants relate. In the event of any breach
of any of such covenants, the Grantor and such aforementioned parties shall have the right to
exercise all of the rights and remedies, and to maintain any actions at law or suits in equity or
other property proceedings to enforce the curing of such breach. The covenants contained in this
Grant Deed shall be for the benefit of and shall be enforceable only by the Grantor, its successors
and such aforementioned parties.
10. Subject to and in accordance with the procedures and provisions of Section 10.5
of the Agreement, the Grantor shall have the right, at its option, to reenter and take possession of
the Property hereby conveyed, or such portion thereof, with all Improvements thereon, and revest
in the Grantor the estate conveyed to the Grantee, if the Agreement is terminated pursuant to
Section 10.4 of the Agreement prior to recordation of a Certificate of Completion.
The Grantor shall have the right to institute such actions or proceedings as it may deem
desirable for effectuating the purposes of this Section, including also the right to execute and
record or file with the Recorder of the County of Marin a written declaration of the termination
of all rights and title of the Grantee, and its successors in interest and assigns, in the Property,
and the revesting of title thereto in the Grantor. Any delay by the Grantor in instituting or
prosecuting any such actions or proceedings or otherwise asserting its rights under this Section
shall not operate as a waiver of such rights or to deprive it of or limit such rights in any way (it
being the intent of this provision that Grantor should not be constrained so as to avoid the risk of
being deprived of or limited to the exercise of the remedy provided in this Section because of
102\04\112187.1 4
concepts of waiver, laches, or others), nor shall any waiver in fact made by the Grantor with
respect to any specific default by the Grantee, its successors and assigns, be considered or treated
as a waiver of the rights of the Grantor with respect to any other defaults by the Grantee, its
successors and assigns, or with respect to the particular default except to the extent specifically
waived.
11. Only the Grantor, its successors and assigns, and the Grantee and the successors
and assigns of the Grantee in and to all or any part of the fee title to the Property shall have the
rights to consent and agree to changes or to eliminate in whole or in part any of the covenants
contained in this Grant Deed or to subject the Property to additional covenants, easements, or
other restrictions. For purposes of this Section, successors and assigns of the Grantee shall be
defined to include only those parties who hold all or any part of the Property in fee title, and not
to include a tenant, lessee, easement holder, licensee, mortgagee, trustee, beneficiary under deed
of trust, or any other person or entity having an interest less than a fee in the Property.
In the event there is a conflict between the provisions of this Grant Deed and the
Agreement, it is the intent of the parties hereto and their successors in interest that the
Agreement shall control.
12. This Grant Deed may be executed and recorded in two or more counterparts, each
of which shall be considered for all purposes a fully binding agreement between the parties.
102104\112'187.1 5
IN WITNESS WHEREOF, the parties hereto have executed this Grant Deed in triplicate
as of this , 19 .
GRANTEE:
NED'S WAY GARDEN HOMES LLC
By:
Its:
By:
Its:
GRANTOR:
TIBURON REDEVELOPMENT
AGENCY, a public body, corporate
And politic
By:
Its: Executive Director
102\041112187.1 6
EXHIBIT A
LEGAL DESCRIPTION OF THE PROPERTY
ALL THAT CERTAIN real property situate in the City of Tiburon, County of Marin,
State of California, described below as follows:
PARCEL ONZ:
Parcel One, as shown upon that certain Parcel Map entitled "Parcel Ma,
Lands of the-Town of Tiburon.3382 O.R. 497, p
Tiburon, Marin County, California", filed for Parcel Two 16 P.M. 37,
Book 26 of Parcel Maps, at Page 43, Marin County eCRecordser 11, 1997 is
PARCEL TWO:
A non-exclusive easement for access, utilit
purposes over that certain area deli Y' storm drainage and parking
that certain Parcel=Map entitled, "Parcel MaP f e, Landseoof H , as shown upon
Tiburon 3382 O.R. 497, Parcel Tiro 16 p. the Town of
California", filed for record December 11, 319971inrBookM26 o County
at Page 43, Marin County Records. 6 of Parcel Maps,
PARCEL THRRE:
A non-exclusive easement for access, utility and storm drainage Purposes
over that certain area designated as "Easement I'll Parcel Map entitled, Parcel Ma as shown upon that
33 2 O.R. 497, Parcel Tiro 16 P.M. 37, Tiburon,3aMarinhCounty of Tiburon "
filed for record December 11, 1997 in Book 26 of Parcel Maps,catiPageiOr
Marin County Records. g
EXHIBIT C
FORM OF RESALE RESTRICTION
1021041109685.6
Recording Requested by:
Marin Housing Authority
When Recorded Return to:
Marin Housing Authority
P.O. Box 4282
San Rafael, CA 94913-4282
Attn: BMR Program
RESALE RESTRICTION AGREEMENT AND OPTION TO PURCHASE
Owner (s)
Property Address:
Name of Development:
Local Jurisdiction:
Purchase Price:
Date of Purchase:
RECITALS
This Resale Restriction Agreement and Option to Purchase
("Agreement") is entered into as of the day of ,
19_, by and between the Housing Authority of the County of
Marin (the "Authority") and ("Owner")
regarding certain improved real property located at
, California (the "Premises").
A. The Premises are described more fully on Exhibit A
attached hereto and incorporated herein by reference and are
subject to the terms and conditions set forth in this Agreement.
B. The Premises are being made available for purchase by
an eligible moderate-income purchaser at a below-market purchase
price pursuant to the Below Market Rate Home Ownership Program
("Program") administered by the Authority on behalf of the above-
named Local Jurisdiction ("City").
Rev. 1/94
C. Owner is an eligible moderate-income purchaser under
the Program (defined below), intends to live in the Premises as
an owner-occupant and agrees to maintain the Premises as Owner's
principal residence.
D. In order to maintain and preserve the Premises as
housing affordable to eligible moderate-income purchasers, it is
necessary to restrict the use and resale price of the Premises by
the occupancy and resale controls. Such.controls prevent initial
and subsequent purchasers from using the property for purposes
incompatible with the Program and realizing unwarranted gains
from sales of the Premises at unrestricted prices. The terms and
conditions of this Agreement provide the necessary occupancy and
resale controls to ensure that the Premises are used, maintained
and preserved as housing affordable to eligible moderate-income'
purchasers.
E. The Premises subject to occupancy and resale controls
constitute a valuable community resource by providing decent,
safe and sanitary housing to moderate-income purchasers who
otherwise would be unable to afford such housing. To protect and
preserve this resource it is necessary, proper and in the public
interest for the Authority to administer the occupancy and resale
controls by means of this Agreement.
NOW, THEREFORE, IN CONSIDERATION OF THE SUBSTANTIAL ECONOMIC
BENEFITS INURING TO OWNER AND THE PUBLIC PURPOSES TO BE ACHIEVED
UNDER THE PROGRAM, OWNER HEREBY GRANTS TO THE AUTHORITY THIS
OPTION ON THE FOLLOWING TERMS AND CONDITIONS.
1. Program Conditions.
Owner agrees and acknowledges that the Authority's
acceptance of Owner's participation in the Program and purchase
of the Premises is conditioned upon Owner's continuing occupancy
of the Premises. Owner shall use and maintain the Premises as
Owner's principal residence. Without limiting the generality of
the foregoing, any absence from the Premises by Owner for a
period of sixty or more consecutive days shall be deemed an
abandonment of the Premises as the principal residence of Owner,
in violation of the conditions of this paragraph. Upon request
of the Authority, Owner shall certify owner's continuing
compliance with Program conditions and provide such documents and
other evidence as may be requested to verify Owner's compliance.
2. Grant of Option to Purchase.
Owner hereby grants and gives to the Authority a right to
purchase all of owner's right, title and interest in and to the
Premises upon the occurrence of events specified in this
Agreement ("Option"), subject to the terms and conditions
contained herein.
Rev. 1/94 2
3. Assignment of the Option.
The Authority may assign the Option to another government
entity or to a moderate-income purchaser who meets the
eligibility qualifications established by the Authority under the
Program. The Authority's assignment of the Option shall not
extend any time limits contained herein with respect to the
exercise period of the Option or the period within which the
Premises must be purchased. As used in this Agreement, the term
"Authority" shall mean the Authority and any assignee to which it
has assigned the Option under this paragraph.
4. Events Giving Rise to Right to Exercise Option.
The Authority shall have the right to exercise its Option
upon the occurrence of any of the following events (an "Option
Event"):
a. Receipt of a Notice of Intent to Transfer (defined in
paragraph 5 below);
b. Any actual, attempted or pending sale, conveyance,
transfer, lease or other attempted disposition of the Premises or
of any estate or interest therein, except as provided in
paragraph 15 below;
c. Any actual, attempted or pending encumbrance of the
Premises, including without limitation by way of mortgage or deed
of trust, or by judgment, mechanics, tax or other lien, except as
provided in paragraph 16 below;
d. Recordation of a notice of default and/or notice of sale
pursuant to California Civil Code section 2924 (or successor
provisions) under any deed of trust or mortgage with a power of
sale encumbering the Premises;
e. Commencement of a judicial foreclosure proceeding
regarding the Premises;
f. Execution by Owner of any deed in lieu of foreclosure
transferring ownership of the Premises; and
g. Commencement of a proceeding or action in bankruptcy,
whether voluntary or involuntary, pursuant to Title 11 of the
United States Code or other bankruptcy statute, or any other
insolvency, reorganization, arrangement, assignment for the
benefit of creditors, receivership or trusteeship, concerning the
Owner.
Rev. 1/94 3
h. Any violation by Owner of the conditions set forth in
paragraph 'I above.
5. Method of Exercising the Option.
a. Notice of Intent to Transfer. If Owner desires to sell,
convey, transfer, lease, encumber or otherwise dispose of the
Premises or of any estate or interest therein, Owner shall notify
Authority in writing to that effect (the "Notice of Intent to
Transfer"). The Notice of Intent to Transfer shall also state
the street address of the Premises, Owner's full name or names,
the address and telephone number at which Owner shall be
contacted if not at the Premises, and shall be delivered
personally or deposited in the United States mail, postage
prepaid, first class, certified-return receipt requested,
addressed to the Housing Authority of the County of Marin,
P.O. Box 4282, San Rafael, CA 94913, Attention: Executive
Director. The Notice of Intent to Transfer shall be in
substantially the form attached hereto and incorporated herein as
Exhibit B.
b. Notice of Exercise. Upon the occurrence of any Option
Event, the Authority may exercise its Option by delivering notice
to Owner that it will exercise such Option pursuant to the terms
of this Agreement ("Notice of Exercise"). The Notice of Exercise
may be in the form attached hereto and incorporated herein as
Exhibit C, or in such other form as the Authority may from time
to time adopt. The Notice of Exercise shall be delivered by
deposit in the United States mail, postage prepaid, first class,
addressed to Owner at the Premises, or at such other address as
may be indicated on the Notice of Intent to Transfer, and
delivery shall be deemed effective on the date of deposit. If
the Option Event relates to the potential foreclosure of a
mortgage under paragraphs 4d, a or f, then the Authority shall
also deliver the Notice of Exercise to the mortgagee or
beneficiary under such mortgage, at such mortgagee's or
beneficiary's address of record in the Office of the Recorder of
the County of Marin.
c. Notice of Consent to Transfer. If the Authority does
not exercise the option, it may give its consent to the
occurrence of the Option Event ("Consent to Transfer"), which
consent shall be conditioned upon the proposed transferee's or
encumbrancer's assumption of Owner's duties and obligations under
this Agreement in writing, or execution of an agreement
substantially similar to this Agreement, within thirty (30) days
after the Consent to Transfer has been delivered to Owner. If
the proposed transferee or encumbrancer fails to assume this
Agreement or execute and deliver a substantially similar
agreement to the Authority within the thirty (30) day period,
then the Consent to Transfer shall expire and the Authority may
exercise the Option as if no Consent to Transfer had been
Rev. 1/94 4
delivered.
d. Time Period for Notice. The Authority must deliver a
Consent to Transfer, if applicable, not later than sixty (60)
days after the date that it receives notification of an option
Event. The Authority must deliver a Notice of Exercise, if
applicable, on such date which is the later to occur of the
following dates: (1) sixty (60) days after the date that the
.Authority receives notification of an Option Event or (2) fifteen
(15) days after a Consent to Transfer has expired. For purposes
of computing commencement of the delivery periods, the Authority
shall be deemed to have notification of an Option Event on the
date that it actually receives a written Notice of Intent to
Transfer, notice of default, summons and complaint or other
.pleading, or other writing specifically stating that an Option
Event has occurred. The Authority shall have no obligation to
deliver a Notice of Exercise or Consent to Transfer, and the
applicable time period for exercise of the Option shall not
commence to run, unless and until it has received notification of
an Option Event in the manner specified in this subparagraph. If
there is a stay or injunction imposed by court order precluding
the Authority from delivering its Consent to Transfer or
exercising the Option within the applicable time period, then the
running of such period shall cease until such time as the stay is
lifted or injunction dissolved and the Authority has been given
written notice thereof, at which time the period for delivery of
a Consent to Transfer or exercise of the Option shall again begin
to run.
e. Notice of Abandonment. If the Authority fails to
deliver a Notice of Exercise or Consent to Transfer within the
above-stated time periods, then the Option shall terminate and
have no further force and effect. Thereafter, upon request by
Owner, the Authority shall cause to be filed for recordation in
the Office of the Recorder of the County of Marin a notice of
abandonment, which shall declare that the provisions of the
Option are no longer applicable to the Premises. If the
Authority fails to record a notice of abandonment, the sole
remedy of Owner shall be to obtain a judicial order instructing
such a recordation, and Owner shall have no right to damages
against the Authority for failure to record such notice promptly.
6. Right to Reinstatement.
If the Option Event is the recordation of a notice of
default, then the Authority shall be deemed to be Owner's
successor in interest under California Civil Code section 2924c
(or successor sections) solely for purposes of reinstatement of
any mortgage on the Premises that has led to the recordation of
the notice of default. As Owner's deemed successor in interest,
the Authority shall be entitled to pay all amounts of principal,
interest, taxes, assessments, insurance premiums, advances,
Rev. 1/94 5
costs, attorneys' fees and expenses required to cure the default.
If the Authority exercises the
option, then any and all amounts
paid by the Authority pursuant to this paragraph shall be treated
as Adjustments to the Resale Price for the Premises, as defined
in paragraph 11, below.
7. Inspection of Premises.
After delivering a Notice of Exercise, the Authority shall
be entitled to inspect the Premises one or more times prior to
the close of escrow to determine the amount of any Adjustments to
the Resale Price. Before inspecting the Premises, the Authority
shall give Owner not less than forty-eight (48) hours written
notice of the date, time and expected duration of the inspection.
The inspection shall be conducted between the hours of 9:00 a.m.
and 5:00 p.m., Monday through Friday, excluding court holidays,
unless another date and time is mutually agreed to by the
parties. Owner shall make the Premises available for inspection
on the date and at the time specified in the Authority's request
for inspection.
8. Escrow.
Promptly after delivering a Notice of Exercise, the
Authority shall open an escrow account for its purchase of the
Premises. Close of escrow shall take place on such date which is
the later to occur of the following: (a) sixty (60) days after a
Notice of Exercise has been delivered, or (b) ten (10) days after
Owner has done all acts and executed all documents required for
close of escrow. Prior to the close of escrow, the Authority
shall deposit the Resale Price as defined in paragraph 10 below,
plus or minus any Adjustments as defined in paragraph 11 below.
Closing costs and title insurance shall be paid pursuant to the
custom and practice in the County of Marin at the time of the
opening of escrow, or as may be provided otherwise by mutual
agreement. Owner agrees to do all acts and execute all documents
necessary to enable the close of escrow and transfer of the
Premises to the Authority.
9. Proceeds of Escrows Removal of Exceptions to Title.
Prior to close of escrow, Owner shall cause the removal of
all exceptions to title to the Premises that were recorded after
the date of this Agreement. All amounts deposited into escrow by
the Authority shall be applied first to the payment of any and
all liens and encumbrances recorded against the Premises, and
thereafter to the payment of escrow fees and closing costs. Any
amounts remaining after the amounts deposited into escrow by the
Authority have been so applied shall be paid to Owner upon the
close of escrow. If the amounts deposited into escrow by the
Authority are insufficient to satisfy all liens and encumbrances
recorded against the Premises, then Owner shall deposit into
Rev. 1/94 6
escrow such additional sums as may be required to remove said
liens and encumbrances. In the event that the Authority agrees
to proceed with close of escrow prior to the date that Owner has
caused all exceptions to title recorded after the date of this
Option to be removed, then Owner shall indemnify Authority from
any and all costs, expenses or liabilities (including attorneys,
fees) incurred or suffered by Authority that relate to such
exceptions and their removal as exceptions to title to the
Premises.
10. Resale Price.
Prior to adjustment pursuant to paragraph 11, the resale
price of the Premises shall be the lowest of ("Resale Price")
a. Median Income. The original price paid by Owner for
acquisition of the Premises pursuant to the Program ("Base
Price") increased (but not decreased) by an amount, if any, equal
to the Base Price multiplied by the percentage increase in the
median household income for the San Francisco Primary
Metropolitan Statistical Area (PMSA)--San Francisco, San Mateo
and Marin Counties--published by the Department of Housing and
Urban Development, Office of Economic Affairs, Economic and
Market Analysis Division ("Median income") between the date of
this Agreement and the date that the Authority receives
notification of an Option Event.
b. Index Price.- The Base Price increased (but not
decreased) by an amount, if any, equal to the Base Price
multiplied by the percentage increase in the Consumer Price Index
for All Urban Consumers for the San Francisco Bay Area published
by the U.S. Department of Labor, Bureau of Labor Statistics
("Index") between the date of this Agreement and the date that
the Authority receives notification of an Option Event.
c. Fair Market Value. The fair market value of the
Premises as determined by an appraiser selected and paid for by
Owner and approved in writing by the Authority.
d. Resale Price Worksheet. To compute the Resale Price,
the Authority may use the Resale Price Worksheet attached as
Exhibit D hereto, or such other form as the Authority may from
time to time adopt.
11. Adjustments to Resale Price.
The Resale Price shall be adjusted by the following
("Adjustments"):
a. Capital Improvements. An increase for capital
improvements made to the Premises by Owner provided that the
amount of said improvements had been previously accepted in
Rev. 1/94 7
writing by the Authority after original written documentation of
the cost was provided to the Authority for verification. The
amount of the Adjustment shall equal the original cost of any
capital improvements depreciated in a straight-line basis based
upon the estimated useful life of the improvement stated in the
Authority's prior written acceptance of said improvement.
b. Damages. A decrease by the amount necessary to repair
damages to the Premises, if any, and to place the Premises into
saleable condition as reasonably determined by the Authority,
including amounts attributed to cleaning, painting, replacing
worn carpeting and draperies, making necessary structural,
mechanical, electrical and plumbing repairs and repairing or
replacing built-in appliances and fixtures.
C. Advances by Authority. A decrease in an amount equal
to the sum of all costs advanced by the Authority for the payment
bf mortgages, taxes, assessments, insurance premiums, homeowner's
fees and/or associated late fees, costs, interest, attorneys'
fees, pest inspections, resale inspections and other expenses
related to the Premises, which Owner has failed to pay or has
permitted to become delinquent.
12. Priority and Effectiveness of the Option.
. a., Recordation. This Agreement shall be filed for
recordation in the Office of the Recorder of the County of Marin
prior to any sale, conveyance, transfer or other disposition of
the Premises, or of any estate or interest therein, by Owner.
The Option shall have priority over any subsequent sale,
conveyance, transfer, lease or other disposition or encumbrance
of the Premises, or of any estate or interest therein. Except as
otherwise provided in paragraph 13a, the exercise of the Option
by the Authority at any time and from time to time shall not
extinguish the Option or cause a merger of the Option into any
estate or other interest in the Premises, and the Option shall
continue to exist and be effective with respect to the Premises
against any subsequent owner in accordance with the terms and
conditions hereof.
b. Request for Notice of Default. The Authority shall file
a Request for Notice of Default for recordation in the Office of
the Recorder of the County of Marin promptly upon execution of
this Agreement (see Exhibit E).
13. Survival of Option Upon Transfer.
a. In General. The Authority's rights to exercise the
Option shall survive any transfer of the Premises by Owner. The
Option may be exercised against the Premises whether owned,
possessed or occupied by (i) an eligible moderate-income
purchaser, (ii) any successor, transferee, assignee, heir,
Rev. 1/94 8
executor, or administrator of an eligible moderate-income
purchaser, including a debtor-in-possession, debtor or trustee
pursuant to Title 11 of the United States Code, or (iii) any
person owning, possessing or occupying the Premises who does not
meet the eligibility qualifications established by the Authority
under the Program (collectively all referred to and defined
herein as "owner"). Notwithstanding the foregoing, the Option
shall not survive (i) the sale and transfer of the Premises to a
third party purchaser pursuant to a judicial or non-judicial
foreclosure or a deed-in-lieu of foreclosure under a power of
sale contained in a mortgage or deed of trust recorded against
the Premises in the Office of the Recorder of the County of Marin
on or prior to the date of recordation of this Agreement,
provided that the Authority has received timely notice of such
Option event and has failed to either reinstate said mortgage or
deed of trust or exercise its Option, or (ii) the recording of
Owner's conveyance of the Premises to the Authority, or its
assignee, provided the conveyance is in accordance with the terms
of this Agreement.
b. HUD Insured Mortgages. If Owner has acquired the
Premises by a mortgage insured by the Secretary of the United
States Department of Housing and Urban Development, and a notice
of default has been recorded pursuant to California Civil Code
section 2924 (or successor provisions), this Option shall
automatically terminate if title to the Premises is transferred
by foreclosure or deed-in-lieu of foreclosure, or if the insured
mortgage is assigned to the Secretary.
14. Voidable Transfers.
As long as the Option has not been abandoned pursuant to
paragraph 5e, any actual or attempted sale, conveyance, transfer
or other disposition of the Premises, or of any estate or
interest therein, in violation of the terms and conditions of
this Option, shall be voidable at the election of the Authority.
15. Permitted Transfers.
The following transfers of title to the Premises, or of any
estate or interest therein ("Permitted Transfers"), will not
authorize the exercise of this Option: a good-faith transfer by
gift, devise or inheritance to Owner's spouse or issue; a taking
of title by a surviving joint tenant; a court-ordered transfer of
title to a spouse as part of a divorce or dissolution proceeding;
or an acquisition of title, or of any interest therein, in
conjunction with marriage. Notwithstanding any Permitted
Transfer, the Option-shall remain effective with respect to the
Premises.
16. Permitted Encumbrances.
This Option shall not become exercisable as the result of
Rev. 1/94 9
Owner's encumbering the Premises for the purpose of securing
financing to purchase the Premises pursuant to the Program, or to
refinance existing indebtedness incurred to purchase the Premises
pursuant to the Program, in an amount not to exceed the
outstanding principal amount of such existing indebtedness.
17. Obligations of Owner After Option Abandonment.
If the Authority records a notice of abandonment of the
Option, then the Premises may be sold by Owner to a third party
without restriction as to price. Upon such sale, Owner shall pay
to Authority an amount equal to eighty-five percent (85%) of the
difference between (a) the actual sales price net of reasonable
and customary real estate commissions paid (such commissions not
to exceed six percent (6%) of the actual sales price), and (b)
the Resale Price plus Adjustments. This amount shall be paid to
the Authority upon close of escrow on the sale of the Premises,
or upon execution of a contract of sale, whichever shall first
occur. Owner shall not receive any proceeds from the sale unless
and until the Authority has been paid in full the amount
determined pursuant to this paragraph.
18. Limits on Liability.
In no event shall the Authority become.liable or obligated
in any manner to Owner by reason of the assignment of the Option,
nor shall the Authority be in any way liable or obligated to
Owner for any failure of the Authority's assignee to consummate a
purchase of the Premises or to comply with the terms of this
Option, or any escrow instructions or agreement for the purchase
of the Premises.
19. Insurance Proceeds and Condemnation Award.
In the event the Premises are destroyed and insurance
proceeds are distributed to Owner instead of being used to
rebuild the premises, or in the event of condemnation, if the
proceeds thereof are distributed to Owner, any surplus of
proceeds remaining after payment of the encumbrances of the
premises shall be distributed as follows: that portion of the
surplus up to, but not to exceed the net amount that Owner would
have received pursuant to paragraph 9 had the Authority exercised
its Option on the date of the destruction or condemnation
valuation date shall be distributed to Owner, and the balance of
such surplus, if any, shall be distributed to the Authority.
20. Term of Option.
The restrictions contained herein shall continue for a
period of thirty (30) years from the date that this Agreement is
filed for record in the Office of the Recorder of the County of
Marin.
Rev. 1/94 10
21. Notices'.
Except as otherwise specified in this Agreement, all notices
required to be sent pursuant to this Agreement shall be made by
personal delivery or by deposit in the United States mail, first
class postage prepaid, and shall be deemed to have been delivered
and received on the date of personal delivery or five (5) days
after deposit in the mail, if sent to the following addresses:
AUTHORITY:
OWNER:
Housing Authority of the County of Marin
Post Office Box 4282
San Rafael, California 94913
Attn: Executive Director and BMR Program
at the address of the Premises
The addresses above may be changed by notice given pursuant to
this section.
22. Attorneys' fees.
If either party is required to initiate legal proceedings to
enforce its rights under this Agreement, the prevailing party in
such action shall be entitled to an award of reasonable
attorneys' fees and costs in addition to any other recovery under
this Agreement.
23. Specific Performance.
Owner acknowledges that any breach in Owner's performance of
Owner's obligations under this Agreement or in the transfer of
the Premises to the Authority shall cause irreparable harm to the
Authority. Owner agrees that the Authority is entitled to
equitable relief in the form of specific performance upon its
exercise of the Option, and that an award of damages shall not be
adequate to compensate the Authority for Owner's failure to
perform according to the terms of this Agreement.
IN WITNESS WHEREOF, the undersigned have caused this Agreement to
be executed this day of , 19-.
OWNER(S):
Rev. 1/94 11
STATE OF CALIFORNIA )
COUNTY OF MARIN ) .s•
On before
me, personally appeared
personally
known to me OR _ proved to me on the basis of satisfactory
evidence to be the person(s) whose name(s) is/are subscribed to
the within instrument and acknowledged to me that he/she/they
executed the same in his/her/their authorized capacity(ies), and
that by his/her/their signature(s) on the instrument the
person(s), or the entity upon behalf of which the person(s)
acted, executed the instrument.
Witness my hand and official seal.
Signature of Notary
Rev. 1/94 12
CERTIFICATE OF ACCEPTANCE
(Pursuant to Government Code 527281)
This is to certify that the interest in real property conveyed by
the Resale Restriction Agreement and Option to Purchase dated
from
to the Housing Authority of the County of Marin, a political
corporation and/or governmental agency, is hereby accepted by the
undersigned officer or agent on behalf of the Housing Authority
of the County of Marin pursuant to authority conferred by
resolution #10-81, dated 5/19/81; and the grantee consents to
recordation thereof by its duly authorized officer.
Dated:
by
JANET MILLER SCHODER, Executive Director
Housing Authority of the County of Marin
Rev. 1/94 13
EXHIBIT A
Legal Description
ATTENTION:
TO BE INSERTED PRIOR TO CLOSING
Exhibit A, page 1 of 1
EXHIBIT D
PRELM NARY TITLE REPORT
1021041109685.6
01/02/1994 21:34 415435243E TOWN OF TIBURON PAGE 02
700 Irwin Street 591 Redwood Ste. 2100
San Rafael, CA 94901 511 Sir Francis Crake Blvd.
San 4 f ael 0323 Mill Valley, CA 94941 Greenbrae, CA 94904
FAX (415) 4S4 7301 (413) 383•8410 (415) 481-7474
FAX (415) 388.5233 FAX (415) 925-0470
CALIFORNIA LAND TITLE COMPANY OF
MARIN
PRELIMINARY REPORT
PROPERTY REFERENCE: Our No.:
Parcel one 26 P.M. 43 Office:
Tiburon, CA 94920 Reply To:
Your No:
Buyer:
Date:
217627 -SD
San Rafael
Sandy Darrington
BURMAx
June 3, 1998
In response to the above referenced application for a policy of title insurance.
CALIFORNIA LAND TITLE COMPANY OF MARIN
hereby reports that it is prepared to Issue, or cause to be issued, as of the date hereof, a Policy or Policies of Title
Insurance describing the land and the estate or interest therein, hereinafter set forth, insuring against loss which
may be sustained by reason of defect, lien or encumbrance not shown or referred to as an Exception in Schedule
8 or not excluded from coverage pursuant to the printed Schedules, Conditions and Stipulations of said Policy
forms.
The printed Exceptions and Exclusions from the coverage of said Policy or Policies are set forth in the attached.
Copies of the Policy forms should be read. They are available from the office which issued this report.
Please read the exceptions shown or referred to below and the exceptions and exclusions attached to this
report carefully. The exceptions and exclusions are meant to provide you with notice of matters which are
not covered under the terms of the title Insurance policy and should be carefully considered.
It Is Important to note that this preliminary report is not a written representation as to the condition of title
and may not list all liens, defects, and encumbrances affecting title to the land.
This report (end any supplements or amendments hereto) is issued solely for the purpose of facilitating the
issuance of a policy of title insurance and no liability is assumed hereby. If it is desired that liability be assumed
prior to the issuance of a policy of title -insurance, a Binder or Commitment should be requested.
The form of Policy, of Title Insurance contemplated by this report is:
California Land Title Association Standard Coverage Policy 1990
OR ALTA Residential Title insurance Policy (6.1-87); and/or American Land
Title Association Loan Policy (10-17-92) with ALTA Endorsement - Form 1 Coverage
Dated as of: May 27, 1998
At: 7;30 a.m.
be /mp / Q~-
Title Offs
Affld rmr "M CNICA o rma txsua wcs cbmr, .,w &-4 coumom%z4L rm LAt o rrrz x rxsv&ALwr compANv
01/02/1994 21:34 415435243E TOWN OF TIBURON PAGE 03
Order No, 217627 _SD
SCHEDULE A
The estate or Interest In the land hereinafter described or referred to covered by this report is:
A FEE as to Parcel One, AN EASEMENT more fully described below as to
Parcels Two and Three
2. Title to said estate or interest at the date hereof is vested In:
Tiburon-Redevelopment Agency as to Parcel One and City of Tiburon, a
municipal corporation as to Parcels Two and Three
3. The land referred to In this report Is situate in the City of Tiburon,
County of Marin, State of California, and Is described as follows:
SEE ATTACHED
01/02/1994 21:34 415435243E TOWN OF TIBURON Pact U4
Order No. 217627 -SD
DESCRIPTION
All that certain real property situate in the City of Tiburon,.
County of Marin, State of California, and is described as follows:
PARCEL ONE:
Parcel One, as shown upon that eertain Parcel Map entitled "Parcel Map,
Lands of the Town of Tiburon.3382 O.R. 497, Parcel Two 16 P.M. 37,
Tiburon, Karin County, California", filed for record December 11, 1997 in
Book 26 of Parcel Maps, at Page 43, Marin County Records.
PARCEL TWO:
A non-exclusive easement for access, utility, storm drainage and parkin
purposes over that certain area designated as "Easement H", as shown upon
that certain Parcel=Map entitled, "Parcel Map, Lands of the Town of
Tiburon 3382 O.R. 497, Parcel Two 16 P.M. 37, Tiburon, Marin Count
California", filed for record December 11, 1997 in Book 26 of Parcel Maps,
at Page 43, Marin County Records.
PARCEL THREE:
A non-exclusive easement for access, utility and storm drainage purposes
over that certain area designated as "Easement I", as shown upon that
certain Parcel Map entitled, "Parcel Map, Lands of the Town of Tiburon
3382 O.R. 497, Parcel Two 16 P.M. 37, Tiburon, Marin County, California",
filed for record December 11, 1997 in Book 26 of Parcel Maps, at Page 43,
Maria County Records.
01/02/1994 21:34 415435243E
Order No.
217627 -SD
SCHEDULES
At the date hereof, exceptions to coverage In addition to the printed Exceptions and
would be as follows: Exclusions In said policy form
1• The herein described property is not presently assessed
to the fact that the vestee herein is an exempt body; however due
said property is conveyed to a taxable entit , if
assessed taxes for the remainder of said fiscalsaid property may be
year
2. The lien of supplemental taxes, if any, assessed ursua
provisions of Chapter 3.5 (commencing with Section 75 nt th the
Revenue and Taxation Code, of the State of California of t he
3. Special Tax foi Community Facilities District No. 1993_1
Original Amount: $98.00 maximum per parcel
Type of Improvements: Old St. Hilarys open Spaceper year
Notice of Special Tax
Lien Recorded: July 6, 1993,
as Instrument No. 93 53103, Marin County
Records
Said Assessment is collected with County taxes.
4. Special Tax for Community Facilities District No. 1995-1
Original Amount: $66.00 maximum per pa
Type of Improvement: Belvedere-Tiburon Librarl Agency
Notice of Special Tax Lien y 9
Recorded: February 21, 1996,
as.Instrument No. 96008243, Marin
County Records
5• An easement for the purpose shown below and ri hts incidental
thereto as set forth in a document 9 Incidental
Recorded: December 29, 1950,
in Book 673 of Official Records at Page 200,
Marin County Records.
For: Constructing, laying, operating, maintaining
and repairing a sewer 9• ~ntaining
sight to connect into andeuseeanincluding the
located therein any sewer system
Affects: Exact width and location not disclosed
CONTINUED
sed
TOWN OF TIBURON
PAGE 05
01/02/1994 21:34 4154352436 TOWN OF TIBURON PAGE 06
Order No. 217627 -SD
EXCEPTIONS
(Continued)
6. An easement for the purpose shown below and rights incidental
thereto as set forth in a document
Recorded: July 27, 1961,
in Book 1483 of Official Records at Page
158 and re-recorded December 20, 1961 in
Book 1526 of Official Records at Page 327,
Marin County Records.
In Favor of: Sanitary District No. S of Marin County, a
public corporation
For: Acquiring, constructing, completing,
reconstructing, repairing, maintaining and
operating sanitary sewers
Affects: Easterly 15 feet (designated "E" on the
filed map referred to herein
An easement for the purpose shown below and rights incidental
thereto as set forth in a document
Recorded: April 12, 1979,
in Book 3529 of Official Records at Page
177, Marin County Records.
In Favor of: Pacific Telephone and Telegraph Company
For: As Stated Therein
Affects: Easements designated "D", as shown upon the
filed map herein. referred to
8• Effect, if any, of that certain Statement of Institution of
Redevelopment Proceedings executed by the Town of Tiburon,
recorded December 8, 1983 as Instrument No. 83061583, Marin
County Records.
9. Terms and Conditions of that certain Redevelopment Plan for the
Tiburon Redevelopment Project, Tiburon, California, executed by
the Town of Tiburon, recorded December 27, 1983 as Instrument
No. 83065111, Marin County Records.
10. Easement(s) for the purpose(s) shown below and rights
incidental thereto as shown or as offered for dedication on the
filed map referred to herein.
For: Storm Drainage
Affects: Easterly 15 feet, designated as "J" upon
the filed map herein referred to
END OF SCHEDULE B.
HOTS N0. 1: There are no conveyances affecting said land, recorded
within six (6) months of the date of this report.
NOTE NO. 2: If an ALTA Residential Owner's Policy is requested in
this transaction, the following exception will appear in Schedule
B:
Water rights, claims or title to water, whether or not shown by the
public records.
CONTINUED
171 / !7L/ t yy4 21:34 415435243E TOWN OF TIBURON PAGE 07
Order No. 217627 -SD
EXCEPTIONS
(Continued)
NOTE NO. 3: The charge for a policy of title insurance, when
issued through this title order, will be based on the basic (not
short-term) title insurance rate.
NOTE NO. 4: If a 1970 ALTA Owner's or Lender's or 1975 ALTA
Leasehold owner's or Lenders policy form has been requested, the
policy, when approved for issuance, will be-endorsed to add the
following to the'Exclusions From Coverage contained therein:
Loan Policy Exclusion:
Any claim, which arises out of the transaction creating the
interest of the mortgagee insured by this policy, by reason of the
operation of federal bankruptcy, state insolvency or similar
creditors' rights laws, that is based on:
(i) the transaction creating the interest of the insured
mortgagee being deemed a fraudulent conveyance or fraudulent
transfer; or,
(ii) the subordintion of the interest of the insured mortgagee
as a result *of the application of the. doctrine of equitable
subordination; or
(iii) the transaction creating the interest of the insured
mortgagee being deemed a preferential transfer except where
the preferential transfer results from the failure:
(a) to timely record the instrument of transfer; or
(b) of such recordation to impart notice to a purchaser for
value or a judgment or lien creditor.
Owner's Policy Exclusion:
Any claim, which arises out of the transaction vesting in the
insured, the estate or interest insured by this policy, by reason
of the operation of federal bankruptcy, state insolvency or similar
creditors' rights laws, that is based on:
(i) the transaction creating the estate or interest insured by
this policy being deemed a fraudulent conveyance or
fraudulent transfer; or
(ii) the transaction creating the interest of the insured
mortgagee being deemed a preferential transfer except where
the preferential transfer results from the failure:
(a) to timely record the instrument of transfer; or
(b) of such recordation to impart notice to a purchaser
for value or a judgment or lien creditor.
01/02/1994 21:94 41543,52436 TOWN OF TIBURON PAGE 02
a r _
700 Irwin Street 591 Redwood
San Rafael, CA 94901 H"., Ste. 2100 511 Sir Francis Drake Blvd.
Mill Valley, CA 94941 Greenbrae, CA 94904
(415) 4S4-9323 (413) 383-8410
FAX (415) 454-7301 FAX (415) 388-5233 (415) 461-7474
FAX (415) 9254470
CALIFORNIA LAND TITLE COMPANY OF
MARIN
PRELIMINARY REPORT
PROPERTY REFERENCE: Our No.:
Parcel One 26 P.M. 43 Office:
Tiburon, CA 94920 Reply To:
Your No:
Buyer:
Date:
217627 -SD
San Rafael
Sandy Darrington
BURMAN
June 3, 1998
In response to the above referenced application for a policy of title insurance.
CALIFORNIA LAND TITLE COMPANY OF MARIN
hereby reports that it is prepared to Issue, or cause to be issued, as of the date hereof, a Policy or Policies of Title
Insurance describing the land and the estate or interest therein, hereinafter set forth, insuring against loss which
may be sustained by reason of defect, lien or encumbrance not shown or referred to as an Exception in Schedule
8 or not excluded from coverage pursuant to the printed Schedules, Conditions and Stipulations of said Policy
forms.
The printed Exceptions and Exclusions from the coverage of said Policy or Policies are set forth in the attached.
Copies of the Policy forms should be read. They are available from the office which issued this report.
Please read the exceptions shown or referred to below and the exceptions and exclusions attached to this
report carefully. The exceptions and exclusions are meant to provide you with notice of matters which are
not covered under the terms of the title Insurance policy and should be carefully considered.
It is important to note that this preliminary report is not a written representation as to the condition of title
and may not list all liens, defects, and encumbrances affecting title to the land.
This report (and any supplements or amendments hereto) is issued solely for the
y purpose of facilitating the
issuance of a policy of title insurance and no liability is assumed hereby. If it is desired that liability be assumed
prior to the Issuance of a policy of title -insurance, a Binder or Commitment should be requested.
The form of Policy of Title Insurance contemplated by this report is:
California Land Title Association Standard Coverage Policy 1990
OR ALTA Residential Title Insurance Policy (6-1-87); and/or American Land
Title Association Loan Policy (10-17-92) with ALTA Endorsement - Form 1 Coverage
Dated as of: May 27, 1998
At: 7;30 a.m.
C )--M
be /mp / Title Offs
AVIUMM utA CNUGGO mzE INSV"VCF COMP W and COMMON E4LTHLwD TITLE I %SUJUwCF COMPANY
01/02/1994 21:34 4154352436 TOWN OF TIBURON PAGE 09
Order No, 217627 -SD
SCHEDULE A
1• The estate or Interest In the land hereinafter described or referred to covered by this report is.
A FEE as to Parcel One, AN EASEMENT more fully described below as to
Parcels Two and Three
2. Title to said estate or Interest at the date hereof is vested in:
Tiburon Redevelopment Agency as to Parcel One and City of Tiburon, a
municipal corporation as to Parcels Two and Three
3. The land referred to In this report Is situate in the City of Tiburon,
County of Marin, State of California, and Is described as follows:
SEE ATTACHED
01/02/1994 21:34 415495243E TOWN OF TIBUP.ON PAGE 04
Order No. 217627 -SD
DESCRIPTION
All that certain real property situate in the City of Tiburon,
County of Marin, State of California, and is described as follows:
PARCEL ON$:
Parcel One, as shown upon that certain Parcel Map entitled "Parcel Map,
Lands of the Town of Tiburon.3382 O.R. 497, Parcel Two 16 P.M. 37,
Tiburon, Xarin County, California's, filed for record December 11, 1997 in
Book 26 of Parcel Maps, at Page 43, Marin County Records.
PARCEL TWO:
A non-exclusive easement for access, utility, storm drainage and parking
purposes over that certain area designated as "Easement H's, as shown upon
that certain Parcel-Map entitled, "Parcel Map, Lands of the Town of
Tiburon 3382 O.R. 497, Parcel Two 16 P.M. 37, Tiburon, Marin County,
California", filed for record December 11, 1997 in Book 26 of Parcel Maps,
at Page 43, Marin County Records.
PARCEL THRRE:
A non-exclusive easement for access, utility and storm drainage purposes
over that certain area designated as "Easement I", as shown upon that
certain Parcel Map entitled, "Parcel Map, Lands of the Town of Tiburon
3382 O.R. 497, Parcel Two 16 P.M. 37, Tiburon, Marin County, California",
filed for record December 11, 1997 in Book 26 of Parcel Maps, at Page 43,
Maria County Records.
01/02/1994 21:34
Order No.
217621
-SD
SCHEDULE B
At the date hereof, exceptions to coverage in addition to the printed Exceptions and Excluslons In said policy form
would be as follows:
1. The herein described property is not presently assessed taxes due
to the fact that the vestee herein is an exempt body; however, if
said property is conveyed to a taxable entity, said property may be
assessed taxes for the remainder of said fiscal year
2. The lien of supplemental taxes, if any, assessed pursuant to the
provisions of Chapter 3.5 (commencing with Section 75) of the
Revenue and Taxation Code, of the State of California.
3. Special Tax for Community Facilities District No. 1993-1
Original Amount: $98.00 maximum per parcel per year
Type of Improvements: Old St. Hilarys open Space
Notice of Special Tax
Lien Recorded: July 6, 1993,
as Instrument No. 93 53103, Marin County
Records
Said Assessment is collected with County taxes.
4. Special Tax for Community Facilities District No. 1995-1
Original Amount: $66.00 maximum per parcel per year
Type of Improvement: Belvedere-Tiburon Library Agency
Notice of Special Tax Lien
Recorded: February 21, 1996,
as Instrument No. 96008243, Marin
County Records
5. An easement for the purpose shown below and rights incidental
thereto as set forth in a document
Recorded: December 29, 1950,
in Book 673 of Official Records at Page 200,
Marin County Records.
For: Constructing, laying, operating, maintaining
and repairing a sewer pipeline, including the
right to connect into and use any sewer system
located therein
Affects: Exact width and location not disclosed
CONTINUED
415435243E
TOWN OF T I EUP.ON
PAGE 05
01/02/1994 21:34 4154352496 TOWN OF TIBURON PAGE 06
Order No. 217627 -SD
EXCEPTIONS
(Continued)
6. An easement for the purpose shown below and rights incidental
thereto as set forth in a document
Recorded: July 27, 1961,
in Book 1483 of Official Records at Page
158 and re-recorded December 20, 1961 in
Book 1526 of Official Records at Page 327,
Marin County Records.
In Favor of: Sanitary District No. 5 of Marin County, a
For: Public corporation
Acquiring, constructing, completing,
reconstructing, repairing, maintaining and
operating sanitary sewers
Affects: Easterly 15 feet (designated "E" on the
filed map referred to herein
An easement for the purpose shown below and rights incidental
thereto as set-forth in a document
Recorded: April 12, 1979,
i
1771 n Book 3529 of Official Records at Page
r County Records. Favor of: Pacific Telephone andFor: P Telegraph Company
As Stated Therein
Affects: Easements designated as shown upon the
filed map herein referred to
8. Effect, if any, of that certain Statement of Institution of
Redevelopment Proceedings executed by the Town of Tiburon,
recorded December 8, 1983 as Instrument No. 83061583, Marin
County Records.
9. Terms and Conditions of that certain Redevelopment Plan for the
Tiburon Redevelopment Project, Tiburon, California, executed by
the Town of Tiburon, recorded December 27, 1983 as Instrument
No. 83065111, Marin County Records.
10. Easement(s) for the purpose(s) shown below and rights
incidental thereto as shown or as offered for dedication on the
filed map referred to herein.
For: Storm Drainage
Affects: Easterly 15 feet, designated as "J" upon
the filed map herein referred to
END OF SCHEDULE B
NOTZ NO. 1: There are no conveyances affecting said land, recorded
within six (6) months of the date of this report.
NOTE NO. 2: If an ALTA Residential Owner's Policy is requested in
this transaction, the following exception will appear in Schedule
B:
Water rights, claims or title to water, whether or not shown by the
public records.
CONTINUED
01/02/1994 21:34 4154952436 TOWN OF TIBURON PAGE 07
Order No. 217627 -SD
EXCEPTIONS
(Continued)
NOTE NO. 3: The charge for a policy of title insurance, when
issued through this title order, will be based on the basic (not
short-term) title insurance rate.
NOTE NO. 4: If a 1970 ALTA Owner's or Lender's or 1975 ALTA
Leasehold owner's or Lender's policy form has been requested, the
policy, when approved for issuance, will be endorsed to add the
following to the Exclusions From Coverage contained therein:
Loan Policy Exclusion:
Any claim, which arises out of the transaction creating the
interest of the mortgagee insured by this policy, by reason of the
operation of federal bankruptcy, state insolvency or similar
creditors' rights laws, that is based on:
(i) the transaction creating the interest of the insured
mortgagee being deemed a fraudulent conveyance or fraudulent
transfer; or
(ii) the subordination of the interest of the insured mortgagee
as a result of the application of the doctrine of equitable
subordination; or
(iii) the transaction creating the interest of the insured
mortgagee being deemed a preferential transfer except where
the preferential transfer results from the failure:
(a) to timely record the instrument of transfer; or
(b) of such recordation to impart notice to a purchaser for
value or a judgment or lien creditor.
Owners Policy Exclusion:
Any claim, which arises out of the transaction vesting in the
insured, the estate or interest insured by this policy, by reason
of the operation of federal bankruptcy, state insolvency or similar
creditors' rights laws, that is based on:
(i) the transaction creating the estate or interest insured by
this policy being deemed a fraudulent conveyance or
fraudulent transfer; or
(ii) the transaction creating the interest of the insured
mortgagee being deemed a preferential transfer except where
the preferential transfer results from the failure:
(a) to timely record the instrument of transfer; or
(b) of such recordation to impart notice to a purchaser
for value or a judgment or lien creditor.
01/02/1994 21:34 41543524.32 TO~)N OF TIBURON PA-GE 09
NOTICE TO BUYERSISELLERSIBORROWERS
ALL MONIESIFUNDS WHICH YOU ARE REQUIRED TO DEPOSIT IN CONJUNCTION WrTH AN
ESCROW CLOSINCI MUST, BY CALIFORNIA LAW'' BE DEPOS(TED/HELDPRIORTO OISBURSEMENT
AS FOLLOWS:
1. Cash and wired funds may be disbursed on the same day as those funds are deposited.
2. Cashier's, Certified and Teller's Checks must be received and deposited one (1) business day prior to the date
of disbursement.
3. AJI other checks, Individual, partnership, corporate and otherwise, must be deposited and held for a period of
three (3) to seven (7) business days prior to the date of disbursement, depending on origin.
PLEASE DISCUSS THE FUNDING WITH YOUR ESCROW OFFICER TO DETERMINE THE TIME PERIOD
GOVERNING YOUR TRANSACTION.
Wired Funds should be directed to ; For the account of:
IMPERIAL BANK CALIFORNIA LAND TITLE COMPANY OF MARIN
456 Montgomery St. Federal Wire Routing # 122201444
San Francisco, CA 94104
(415) 954-5030 BRANCH ACCOUNT NUMBERS:
San Rafael 18-027-631
MITI Valley 18-027-682
Greenbrae 18-027-585
STAT1fTORYFORM OF NOTICE REQUIRED PURSUANT TO CALIFORNIA REYENUEAND TAXATION
CODE
"In accordance with Sections 18805 and 26131 of the Revenue and Taxation Code. a buyer may be required to
withhold an amount equal to 3 113% of the sales price in the case of a disposition of California real property interest
by either:
1. A seller who Is an Individual with a last known street address outside of California or when the disbursement
Instructions authorize the proceeds be sent to a financial Intermediary of the seller, OR
2. A corporate seller which has no permanent place of business in California.
The buyer may become subject to penalty for failure to withhold an amount equal to the lesser of 10 percent of the
amount required to be withheld or five hundred ($500).
However, notwithstanding any other provision Included in the California statutes referenced above, no buyer will be
required to withhold any amount or be subject to penalty for failure to withhold if:
1. The sales price of the California real property conveyed does not exceed one hundred thousand ($100,000),
OR
2- The seller executes a written certificate, under the penalty of perjury, certifying that the seller is a resident of
California. or N a corporation, has a permanent place of business in California, OR
3. The seller, who Is an individual, executes a written certificate, under penalty of
property being conveyed Is the seller's principal residence (as defined in Section e 0344 of the Internal Revenue
Code).
The seller Is subject to penatty for knowingly filing a fraudulent certificate for the purpose of avoiding the
withholding requirement.
The California statutes referenced above include provisions which authorize the Franchise Tax Board to grant
reduced withholding and waivers from withholding on a case-by-case basis."
The seller may request a waiver by contacting: FRANCHISE TAX BOARD, Withhold at Source Unit
P. O. Box 651, Sacramento, CA 95812-0851 (916) 369-4900
'California Insurance Code 012413.1 (Effective 111/90)
01/02/1994 21:94 415435243E
TOWN OF TIBU7RON
TOWN Or TIBURON
PAGE 01
1305 TIBURON BOULEVARD - TIBURON - CALIFORNIA 94920 • (415) r3J-7373
FAX (415) 435.2A38
Planning & Building Department
FAX
/
tc
DATE:
TO.
ORGANIZATION:
FAX
FROM:
SUBJECT:
MESSAGE:
PAGES (including cover):
6/8/98
Tom Webber
Scott Anderson
Ned's Wa Property
Preliminary Title Report
You may wish to substitute the
lega escription or t e one in EH-e
Dra_f DDA
9
Recording Requested by:
Marin Housing Authority
When Recorded Return to:
Marin Housing Authority
P.O. Box 4282
San Rafael, CA 94913-4282
Attn: BMR Program
RESALE RESTRICTION AGREEMENT AND OPTION TO PURCHASE
Owner(s):
Property Address:
Name of Development:
Local Jurisdiction:
Purchase Price:
Date of Purchase:
I0&"f%TTXT.0
This Resale Restriction Agreement and Option to Purchase
('Agreement") is entered into as of the day of ,
19 , by and between the Housing Authority of the County of
Marin (the "Authority") and ("Owner
regarding certain improved real property located at
California (the "Premises").
A. The Premises are described more fully on Exhibit A
attached hereto and incorporated herein by reference and are
subject to the terms and conditions set forth in this Agreement.
B. The Premises are being made available for purchase by
an eligible moderate-income purchaser at a below-market purchase
price pursuant to the Below Market Rate Home Ownership Program
("Program") administered by the Authority on behalf of the above-
named Local Jurisdiction ("City").
Rev. 1/94
C. Owner is an eligible moderate-income purchaser under
the Program (defined below), intends to live in the Premises as
an owner-occupant and agrees to maintain the Premises as Owner's
principal residence.
D. In order to maintain and preserve the Premises as
housing affordable to eligible moderate-income purchasers, it is
necessary to restrict the use and resale price of the Premises by
the occupancy and resale controls. Such controls prevent initial
and subsequent purchasers from using the property for purposes
incompatible with the Program and realizing unwarranted gains
from sales of the Premises at unrestricted prices. The terms and
conditions of this Agreement provide the necessary occupancy and
resale controls to ensure that the Premises are used, maintained
and preserved as housing affordable to eligible moderate-income
purchasers.
E. The Premises subject to occupancy and resale controls
constitute a valuable community resource by providing decent,
safe and sanitary housing to moderate-income purchasers who
otherwise would be unable to afford such housing. To protect and
preserve this resource it is necessary, proper and in the public
interest for the Authority to administer the occupancy and resale
controls by means of this Agreement.
NOW, THEREFORE, IN CONSIDERATION OF THE SUBSTANTIAL ECONOMIC
BENEFITS INURING TO OWNER AND THE PUBLIC PURPOSES TO BE ACHIEVED
UNDER THE PROGRAM, OWNER HEREBY GRANTS TO THE AUTHORITY THIS
OPTION ON THE FOLLOWING TERMS AND CONDITIONS.
1. Program Conditions.
Owner agrees and acknowledges that the Authority's
acceptance of Owner's participation in the Program and purchase
of the Premises is conditioned upon Owner's continuing occupancy
of the Premises. Owner shall use and maintain the Premises as
Owner's principal residence. Without limiting the generality of
the foregoing, any absence from the Premises by Owner for a
- period of sixty or more consecutive days shall be deemed an
abandonment of the Premises as the principal residence of Owner,
in violation of the conditions of this paragraph. Upon request
of the Authority, Owner shall certify Owner's continuing
compliance with Program conditions and provide such documents and
other evidence as may be requested to verify Owner's compliance.
2. Grant of Option to Purchase.
Owner hereby grants and gives to the Authority a right to
purchase all of owner's right, title and interest in and to the
Premises upon the occurrence of events specified in this
Agreement ("Option"), subject to the terms and conditions
contained herein.
Rev. 1/94 2
3. Assignment of the Option.
The Authority may assign the Option to another government
entity or to a moderate-income purchaser who meets the
eligibility qualifications established by the Authority under the
Program. The Authority's assignment of the Option shall not
extend any time limits contained herein with respect to the
exercise period of the Option or the period within which the
Premises must be purchased. As used in this Agreement, the term
"Authority" shall mean the Authority and any assignee to which it
has assigned the Option under this paragraph.
4. Events Giving Rise to Right to Exercise option.
The Authority shall have the right to exercise its Option
upon the occurrence of any of the following events (an "Option
Event"):
a. Receipt of a Notice of Intent to Transfer (defined in
paragraph 5 below);
b. Any actual, attempted or pending sale, conveyance,
transfer, lease or other attempted disposition of the Premises or
of any estate or interest therein, except as provided in
paragraph 15 below;
c. Any actual, attempted or pending encumbrance of the
Premises, including without limitation by way of mortgage or deed
of trust, or by judgment, mechanics, tax or other lien, except as
provided in paragraph 16 below;
d. Recordation of a notice of default and/or notice of sale
pursuant to California Civil Code section 2924 (or successor
provisions) under any deed of trust or mortgage with a power of
sale encumbering the Premises;
e. Commencement of a judicial foreclosure proceeding
regarding the Premises;
f. Execution by Owner of any deed in lieu of foreclosure
transferring ownership of the Premises; and
g. Commencement of a proceeding or action in bankruptcy,
whether voluntary or involuntary, pursuant to Title 11 of the
United States Code or other bankruptcy statute, or any other
insolvency, reorganization, arrangement, assignment for the
benefit of creditors, receivership or trusteeship, concerning the
Owner.
Rev. 1/94 3
h. Any violation by Owner of the conditions set forth in
paragraph 1 above.
5. Method_ of Exercising the fttion.
a. Notice of Intent to Transfer. If Owner desires to sell,
convey, transfer, lease, encumber or otherwise dispose of the
Premises or of any estate or interest therein, Owner shall notify
Authority in writing to that effect (the "Notice of Intent to
Transfer"). The Notice of Intent to Transfer shall also state
the street address of the Premises, Owner's full name or names,
the address and telephone number at which Owner shall be
contacted if not at the Premises, and shall be delivered
personally or deposited in the United States mail, postage
prepaid, first class, certified-return receipt requested,
addressed to the Housing Authority of the County of Marin,
P.O. Box 4282, San Rafael, CA 94913, Attention: Executive
Director. The Notice of Intent to Transfer shall be in
substantially the form attached hereto and incorporated herein as
Exhibit B.
b. Notice of Exercise. Upon the occurrence of any Option
Event, the Authority may exercise its Option by delivering notice
to Owner that it will exercise such Option pursuant to the terms
of this Agreement ("Notice of Exercise"). The Notice of Exercise
may be in the form attached hereto and incorporated herein as
Exhibit C, or in such other form as the Authority may from time
to time adopt. The Notice of Exercise shall be delivered by
deposit in the United States mail, postage prepaid, first class,
addressed to Owner at the Premises, or at such other address as
may be indicated on the Notice of Intent to Transfer, and
delivery shall be deemed effective on the date of deposit. If
the Option Event relates to the potential foreclosure of a
mortgage under paragraphs 4d, a or f, then the Authority shall
also deliver the Notice of Exercise to the mortgagee or
beneficiary under such mortgage, at such mortgagee's or
beneficiary's address of record in the Office of the Recorder of
the County of Marin.
c. Notice of Consent to Transfer. If the Authority does
not exercise the Option, it may give its consent to the
occurrence of the Option Event ("Consent to Transfer"), which
consent shall be conditioned upon the proposed transferee's or
encumbrancer's assumption of Owner's duties and obligations under
this Agreement in writing, or execution of an agreement
substantially similar to this Agreement, within thirty (30) days
after the Consent to Transfer has been delivered to Owner. If
the proposed transferee or encumbrancer fails to assume this
Agreement or execute and deliver a substantially similar
agreement to the Authority within the thirty (30) day period,
then the Consent to Transfer shall expire and the Authority may
exercise the Option as if no Consent to Transfer had been
Rev. 1/94 4
delivered.
d. Time Period for Notice. The Authority must deliver a
Consent to Transfer, if applicable, not later than sixty (60)
days after the date that it receives notification of an Option
Event. The Authority must deliver a Notice of Exercise, if
applicable, on such date which is the later to occur of the
following dates: (1) sixty (60) days after the date that the
Authority receives notification of an Option Event or (2) fifteen
(15) days after a Consent to Transfer has expired. For purposes
of computing commencement of the delivery periods, the Authority
shall be deemed to have notification of an Option Event on the
date that it actually receives a written Notice of Intent to
Transfer, notice of default, summons and complaint or other
.pleading, or other writing specifically stating that an Option
Event has occurred. The Authority shall have no obligation to
deliver a Notice of Exercise or Consent to Transfer, and the
applicable time period for exercise of the Option shall not
commence to run, unless and until it has received notification of
an Option Event in the manner specified in this subparagraph. If
there is a stay or injunction imposed by court order precluding
the Authority from delivering its Consent to Transfer or
exercising the Option within the applicable time period, then the
running of such period shall cease until such time as the stay is
lifted or injunction dissolved and the Authority has been given
written notice thereof, at which time the period for delivery of
a Consent to Transfer or exercise of the Option shall again begin
to run.
e. Notice of Abandonment. If the Authority fails to
deliver a Notice of Exercise or Consent to Transfer within the
above-stated time periods, then the Option shall terminate and
have no further force and effect. Thereafter, upon request by
Owner, the Authority shall cause to be filed for recordation in
the Office of the Recorder of the County of Marin a notice of
abandonment, which shall declare that the provisions of the
Option are no longer applicable to the Premises. If the
Authority fails to record a notice of abandonment, the sole
remedy of owner shall be to obtain a judicial order instructing
such a recordation, and Owner shall have no right to damages
against the Authority for failure to record such notice promptly.
6. Right to Reinstatement.
If the Option Event is the recordation of a notice of
default, then the Authority shall be deemed to be Owner's
successor in interest under California Civil Code section 2924c
(or successor sections) solely for purposes of reinstatement of
any mortgage on the Premises that has led to the recordation of
the notice of default. As Owner's deemed successor in interest,
the Authority shall be entitled to pay all amounts of principal,
interest, taxes, assessments, insurance premiums, advances,
Rev. 1/94 5
costs, attorneys' fees and expenses required to cure the default.
If the Authority exercises the Option, then any and all amounts
paid by the Authority pursuant to this paragraph shall be treated
as Adjustments to the Resale Price for the Premises, as defined
in paragraph 11, below.
7. Inspection of Premises.
After delivering a Notice of Exercise, the Authority shall
be entitled to inspect the Premises one or more times prior to
the close of escrow to determine the amount of any Adjustments to
the Resale Price. Before inspecting the Premises, the Authority
shall give Owner not less than forty-eight (48) hours written
notice of the date, time and expected duration of the inspection.
The inspection shall be conducted between the hours of 9:00 a.m.
and 5:00 p.m., Monday through Friday, excluding court holidays,
unless another date and time is mutually agreed to by the
parties. Owner shall make the Premises available for inspection
on the date and at the time specified in the Authority's request
for inspection.
8. Escrow.
Promptly after delivering a Notice of Exercise, the
Authority shall open an escrow account for its purchase of the
Premises. Close of escrow shall take place on such date which is
the later to occur of the following: (a) sixty (60) days after a
Notice of Exercise has been delivered, or (b) ten (10) days after
Owner has done all acts and executed all documents required for
close of escrow. Prior to the close of escrow, the Authority
shall deposit the Resale Price as defined in paragraph 10 below,
plus or minus any Adjustments as defined in paragraph 11 below.
Closing costs and title insurance shall be paid pursuant to the
custom and practice in the County of Marin at the time of the
opening of escrow, or as may be provided otherwise by mutual
agreement. Owner agrees to do all acts and execute all documents
necessary to enable the close of escrow and transfer of the
Premises to the Authority.
9. Proceeds of Escrows Removal of Exceptions to Title.
Prior to close of escrow, Owner shall cause the removal of
all exceptions to title to the Premises that were recorded after
the date of this Agreement. All amounts deposited into escrow by
the Authority shall be applied first to the payment of any and
all liens and encumbrances recorded against the Premises, and
thereafter to the payment of escrow fees and closing costs. Any
amounts remaining after the amounts deposited into escrow by the
Authority have been so applied shall be paid to Owner upon the
close of escrow. If the amounts deposited into escrow by the
Authority are insufficient to satisfy all liens and encumbrances
recorded against the Premises, then Owner shall deposit into
Rev. 1/94 6
escrow such additional sums as may be required to remove said
liens and encumbrances. In the event that the Authority agrees
to proceed with close of escrow prior to the date that Owner has
caused all exceptions to title recorded after the date of this
Option to be removed, then Owner shall indemnify Authority from
any and all costs, expenses or liabilities (including attorneys,
fees) incurred or suffered by Authority that relate to such
exceptions and their removal as exceptions to title to the
Premises.
10. Resale Price.
Prior to adjustment pursuant to paragraph 11, the resale
price of the Premises shall be the lowest of ("Resale Price")
a. Median Income. The original price paid by Owner for
acquisition of the Premises pursuant to the Program ("Base
Price") increased (but not decreased) by an amount, if any, equal
to the Base Price multiplied by the percentage increase in the
median household income for the San Francisco.Primary
Metropolitan Statistical Area (PMSA)--San Francisco, San Mateo
and Marin Counties--published by the Department of Housing and
Urban Development, Office of Economic Affairs, Economic and
Market Analysis Division ("Median Income") between the date of
this Agreement and the date that the Authority receives
notification of an Option Event.
b. Index Price. The Base Price increased (but not
decreased) by an amount, if any, equal to the Base Price
multiplied by the percentage increase in the Consumer Price Index
for All Urban Consumers for the San Francisco Bay Area published
by the U.S. Department of Labor, Bureau of Labor Statistics
("Index") between the date of this Agreement and the date that
the Authority receives notification of an Option Event.
C. Fair Market Value. The fair market value of the
Premises as determined by an appraiser selected and paid for by
Owner and approved in writing by the Authority.
d. Resale Price Worksheet. To compute the Resale Price,
the Authority may use the Resale Price Worksheet attached as
Exhibit D hereto, or such other form as the Authority may from
time to time adopt.
11. Adjustments to Resale Price.
The Resale Price shall be adjusted by the following
("Adjustments"):
a. Capital Improvements. An increase for capital
improvements made to the Premises by Owner provided that the
amount of said improvements had been previously accepted in
Rev. 1/94 7
writing by the Authority after original written documentation of
the cost was provided to the Authority for verification. The
amount of the Adjustment shall equal the original cost of any
capital improvements depreciated in a straight-line basis based
upon the estimated useful life of the improvement stated in the
Authority's prior written acceptance of said improvement.
b. Damages. A decrease by the amount necessary to repair
damages to the Premises, if any, and to place the Premises into
saleable condition as reasonably determined by the Authority,
including amounts attributed to cleaning, painting, replacing
worn carpeting and draperies, making necessary structural,
mechanical, electrical and plumbing repairs and repairing or
replacing built-in appliances and fixtures.
C. Advances by Authority. A decrease in an amount equal
to the sum of all costs advanced by the Authority for the payment
bf mortgages, taxes, assessments, insurance premiums, homeowner's
fees and/or associated late fees, costs, interest, attorneys'
fees, pest inspections, resale inspections and other expenses
related to the Premises, which Owner has failed to pay or has
permitted to become delinquent.
12. Priority and Effectiveness of the Option.
a.. Recordation. This Agreement shall be filed for
recordation in the Office of the Recorder of the County of Marin
prior to any sale, conveyance, transfer or other disposition of
the Premises, or of any estate or interest therein, by Owner.
The Option shall have priority over any subsequent sale,
conveyance, transfer, lease or other disposition or encumbrance
of the Premises, or of any estate or interest therein. Except as
otherwise provided in paragraph 13a, the exercise of the Option
by the Authority at any time and from time to time shall not
extinguish the Option or cause a merger of the Option into any
estate or other interest in the Premises, and the Option shall
continue to exist and be effective with respect to the Premises
against any subsequent owner in accordance with the terms and
conditions hereof.
b. Request for Notice of Default. The Authority shall file
a Request for Notice of Default for recordation in the Office of
the Recorder of the County of Marin promptly upon execution of
this Agreement (see Exhibit E).
13. Survival of Option Upon Transfer.
a. In General. The Authority's rights to exercise the
Option shall survive any transfer of the Premises by Owner. The
Option may be exercised against the Premises whether owned,
possessed or occupied by (i) an eligible moderate-income
purchaser, (ii) any successor, transferee, assignee, heir,
Rev. 1/94 8
executor, or administrator of an eligible moderate-income
purchaser, including a debtor-in-possession, debtor or trustee
pursuant to Title 11 of the United States Code, or (iii) any
person owning, possessing or occupying the Premises who does not
meet the eligibility qualifications established by the Authority
under the Program (collectively all referred to and defined
herein as "Owner"). Notwithstanding the foregoing, the Option
shall not survive (i) the sale and transfer of the Premises to a
third party purchaser pursuant to a judicial or non-judicial
foreclosure or a deed-in-lieu of foreclosure under a power of
sale contained in a mortgage or deed of trust recorded against
the Premises in the Office of the Recorder of the County of Marin
on or prior to the date of recordation of this Agreement,
provided that the Authority has received timely notice of such
Option event and has failed to either reinstate said mortgage or
deed of trust or exercise its Option, or (ii) the recording of
Owner's conveyance of the Premises to the Authority, or its
assignee, provided the conveyance is in accordance with the terms
of this Agreement.
b. HUD Insured Mortgages. If Owner has acquired the
Premises by a mortgage insured by the Secretary of the United
States Department of Housing and Urban Development, and a notice
of default has been recorded pursuant to California Civil Code
section 2924 (or successor provisions), this Option shall
automatically terminate if title to the Premises is transferred
by foreclosure or deed-in-lieu of foreclosure, or if the insured
mortgage is assigned to the Secretary.
14. Voidable Transfers.
As long as the Option has not been abandoned pursuant to
paragraph 5e, any actual or attempted sale, conveyance, transfer
or other disposition of the Premises, or of any estate or
interest therein, in violation of the terms and conditions of
this Option, shall be voidable at the election of the Authority.
15. Permitted Transfers.
The following transfers of title to the Premises, or of any
estate or interest therein ("Permitted Transfers"), will not
authorize the exercise of this Option: a good-faith transfer by
gift, devise or inheritance to Owner's spouse or issue; a taking
of title by a surviving joint tenant; a court-ordered transfer of
title to a spouse as part of a divorce or dissolution proceeding;
or an acquisition of title, or of any interest therein, in
conjunction with marriage. Notwithstanding any Permitted
Transfer, the Option shall remain effective with respect to the
Premises.
16. Permitted Encumbrances.
This Option shall not become exercisable as the result of
Rev. 1/94 9
Owner's encumbering the Premises for the purpose of securing
financing to purchase the Premises pursuant to the Program, or to
refinance existing indebtedness incurred to purchase the Premises
pursuant to the Program, in an amount not to exceed the
outstanding principal amount of such existing indebtedness.
17. Obligations of Owner After Option Abandonment.
If the Authority records a notice of abandonment of the
Option, then the Premises may be sold by Owner to a third party
without restriction as to price. Upon such sale, Owner shall pay
to Authority an amount equal to eighty-five percent (85%) of the
difference between (a) the actual sales price net of reasonable
and customary real estate commissions paid (such commissions not
to exceed six percent (6%) of the actual sales price), and (b)
the Resale Price plus Adjustments. This amount shall be paid to
the Authority upon close of escrow on the sale of the Premises,
or upon execution of a contract of sale, whichever shall first
occur. Owner shall not receive any proceeds from the sale unless
and until the Authority has been paid in full the amount
determined pursuant to this paragraph.
18. Limits on Liability.
In no event shall the Authority become liable or obligated
in any manner to Owner by reason of the assignment of the Option,
nor shall the Authority be in any way liable or obligated to
Owner for any failure of the Authority's assignee to consummate a
purchase of the Premises or to comply with the terms of this
Option, or any escrow instructions or agreement for the purchase
of the Premises.
19. Insurance Proceeds and Condemnation Award.
In the event the Premises are destroyed and insurance
proceeds are distributed to Owner instead of being used to
rebuild the premises, or in the event of condemnation, if the
proceeds thereof are distributed to Owner, any surplus of
proceeds remaining after payment of the encumbrances of the
premises shall be distributed as follows: that portion of the
surplus up to, but not to exceed the net amount that Owner would
have received pursuant to paragraph 9 had the Authority exercised
its Option on the date of the destruction or condemnation
valuation date shall be distributed to Owner, and the balance of
such surplus, if any, shall be distributed to the Authority.
20. Term of Option.
The restrictions contained herein shall continue for a
period of thirty (30) years from the date that this Agreement is
filed for record in the Office of the Recorder of the County of
Marin.
Rev. 1/94 10
21. Notices.
Except as otherwise specified in this Agreement, all notices
required to be sent pursuant to this Agreement shall be made by
personal delivery or by deposit in the United States mail, first
class postage prepaid, and shall be deemed to have been delivered
and received on the date of personal delivery or five (5) days
after deposit in the mail, if sent to the following addresses:
AUTHORITY:
OWNER:
Housing Authority of the County of Marin
Post Office Box 4282
San Rafael, California 94913
Attn: Executive Director and BMR Program
at the address of the Premises
The addresses above may be changed by notice given pursuant to
this section.
22. Attorneys' fees.
If either party is required to initiate legal proceedings to
enforce its rights under this Agreement, the prevailing party in
such action shall be entitled to an award of reasonable
attorneys' fees and costs in addition to any other recovery under
this Agreement.
23. Specific Performance.
Owner acknowledges that any breach in owner's performance of
Owner's obligations under this Agreement or in the transfer of
the Premises to the Authority shall cause irreparable harm to the
Authority. Owner agrees that the Authority is entitled to
equitable relief in the form of specific performance upon its
exercise of the Option, and that an award of damages shall not be
adequate to compensate the Authority for Owner's failure to
perform according to the terms of this Agreement.
IN WITNESS WHEREOF, the undersigned have caused this Agreement to
be executed this day of , 19-.
OWNER(S):
Rev. 1/94 11
STATE OF CALIFORNIA )
COUNTY OF MARIN ) `6
On before
me, personally appeared
,
personally
known to me OR proved to me on the basis of satisfactory
evidence to be the person(s) whose name(s) is/are subscribed to
the within instrument and acknowledged to me that he/she/they
executed the same in his/her/their authorized capacity(ies), and
that by his/her/their signature(s) on the instrument the
person(s), or the entity upon behalf of which the person(s)
acted, executed the instrument.
Witness my hand and official seal.
Signature of Notary
Rev. 1/94 12
CERTIFICATE OF ACCEPTANCE
(Pursuant to Government Code §27281)
This is to certify that the interest in real property conveyed by
the Resale Restriction Agreement and Option to Purchase dated
from
to the Housing Authority of the County of Marin, a political
corporation and/or governmental agency, is hereby accepted by the
undersigned officer or agent on behalf of the Housing Authority
of the County of Marin pursuant to authority conferred by
resolution #10-81, dated 5/19/81; and the grantee consents to
recordation thereof by its duly authorized officer.
Dated:
by
JANET MILLER SCHODER, Executive Director
Housing Authority of the County of Marin
Rev. 1/94 13
EXHIBIT A
Legal Description
ATTENTION:
TO BE INSERTED PRIOR TO CLOSING
Exhibit A, page 1 of 1
EXHIBIT B
VIA CERTIFIED MAIL - RETURN RECEIPT REQUESTED
To: Housing Authority of the County of Marin
Post Office Box 4282
San Rafael, California 94913
Date:
Re: Notice of Intent to Transfer
The undersigned Owner(s), ,
hereby gives notice of his/her ante to transfer a roperty
located at ( e "Premises"). Owner may
be contacted at the Premises or the llowing gldress:
Owner's daytime telephon number)
The proposed transfer o the
person(s):
Name:
Address:
Telephone
The propos
(
3 ansfer is:
e
a'se
cumbrance
Other
Specify:-
hkises is to the following
(check one)
OWNER
Signature
Exhibit B, page 1 of 1
EXHIBIT C
To: Date:
Owner or Transferee
Address
Re: Notice of Exercise
The Housing Authority of the County of Marin uthor' y")
hereby gives notice that it is exercising its option p chase
the real property located at e
option has been granted to the Authorit ursuant to the Resale
Restriction Agreement and Option to Purch a between Owner and
the Authority dated and corded
he utho y h assigned its
option to purchase the real pro rty to
An escrow for the purchase wil be open with F st American
Title Company of Marin.
The Hou&ing AALlIpSity of the County of Marin
by \ \ -
Its Aut raze euresentative
S* A* M* P* L* E
Exhibit C, page 1 of 1
EXHIBIT "D"
MAR N
BMR RE-SALE PRICE WORKSHEET
HOUSING
Date:
MalikV thwokrg More Arlmdable
.IfI N. St" Pedro Road
Name:
i•
tint O((icc Him 4282
'
Salt Rafael California 94913
Address:
415/4724030
(FAX)415/472-2186
Purchase Price:
t:xendive 1Hfl'Ct~N
lartct Millcr Scl"%kr
Date of Purchase:
1"Ily Diredor
Micitacl 1). Kelleher
Months Owned: MO.
' A. MEDIAN INCOME
eo~r
Present Median: }
Effective Date:
l
Original Median:
Effective Date:
• Difference: }
No. of Months: mo•
Rate of Increase:
x 12 mo. / yr. _ / annual
mo
Increase in Price:
x % nnum x moo
12 mo./yr.
BMR Re-Sale Price:
B. CONSUMER PRICE I
Present CPI:
Original CPI:
Difference
For month of:
For month of:
No. of Months: moo
to of In x 12 mo. / yr. % / annum
aro.
creas)1n ice:. x S / annum x mo.
12 •
ice: +
cr'
C. FAIR MARKET VALUE
The fair market value, if unrestricted by the DMR Deed Restrictions, is estimated to be in excess of
the above DMR Re-Sale Price calculations, and thus would not govern.
AS OF THIS DATE. THE BMR RE-SALE PRICE IS BASED DH •
Exhibit D. page 1 of 1
Order No.
Escrow No.
Loan No.
WHEN RECORDED MAIL TO:
EXHIBIT "Ell
SPACE ABOVE THIS LINE FOR RECORDER'S USE ONLY
Request For Notice Under Section 2924b Civil Code
In accordance with Section 2924b, Civil Code, request is hereby made that a copy of any Notice of Default and a copy of an\
Notice of Sale under the Deed of Trust recorded as instrument No. _
on
Records of
, Officia
19 , in Book , Page _
County, California, and describing land therein as
executed by , as Trusto
in which is named a
Beneficiary, and
be mailed to
at
Number and Street
City and State
N OTI C E: A COPY OF ANY NOTICE OF DEFAULT AND OF ANY NOTICE OF SALE WILL BE SENT ONLY TO TH
ADDRESS CONTAINED IN THIS RECORDED REQUEST. IF YOUR ADDRESS CHANGES, A NEW REQUEST MU"
BE RECORDED.
I
STATE OF CALIFORNIA
COUNTY OF 1
On ,
before me, the undersigned, a Notary Public in and for said State, personally
appeared
personally known to me (or proved to me on the basis of satisfactory evidence) to
be the person(s) whose name(s) Is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same.
WITNESS my hand and official seaL
Signature
, as Trustee
Exhibit E, page 1 of 1
(This area for official notanai seal) 68 (Rev. 1 /F